C u r r e n t A n t h r o p o l o g y Volume 42, Number 2, April 2001
䉷 2001 by The Wenner-Gren Foundation for Anthropological Research. All rights reserved 0011-3204/2001/4202-0001$3.00
Lost Worlds
Environmental Disaster,
“Culture Loss,” and the Law1
by Stuart Kirsch
Indigenous claims about “culture loss” pose a problem for con-
temporary definitions of culture as a process that continually un-
dergoes change rather than something which can be damaged or
lost. This issue is examined in the context of hearings at the Nu-
clear Claims Tribunal in the Marshall Islands, which was estab-
lished to adjudicate claims regarding damage and loss to persons
and property resulting from United States nuclear weapons test-
ing during the 1940s and ’50s. The concept of cultural property
rights is used to identify the referents of discourse about culture
loss, including local knowledge, subsistence production, and con-
nections to place. The problems caused by the taking of inaliena-
ble possessions are also considered. At issue is whether indige-
nous relationships to land are of ownership, belonging, or both.
The definition and significance of culture and loss are increas-
ingly debated in legal contexts ranging from tribunals and truth
commissions to land rights hearings and heritage legislation
around the world.
s t u a r t k i r s c h is Visiting Assistant Professor in the Depart-
ment of Anthropology of the University of Michigan (Ann Arbor,
Mich. 48109-1382, U.S.A. [skirsch@umich.edu]) and Visiting Sen-
ior Research Associate in the Department of Social Anthropology
at the University of Cambridge. Born in 1960, he was educated
at George Washington University (B.A., 1982) and the University
of Pennsylvania (Ph.D., 1991). He has consulted on a number of
environmental law cases in the Pacific, including the lawsuit
against the Ok Tedi mine. His primary research is with the
Yonggom of Papua New Guinea, who have been greatly affected
by that project. His publications include “Lost Tribes: Indigenous
People and the Social Imaginary” (Anthropological Quarterly
70[2]:58–67) and “Changing Views of Place and Time among the
Ok Tedi,” in Mining and Indigenous Life Worlds in Australia
and Papua New Guinea, edited by Alan Rumsey and James Wei-
ner (Adelaide: Crawford House Press, in press). The present paper
was submitted 27 iv 00 and accepted 26 ix 00.
1. This paper was written while I was in residence at the University
of Cambridge, with funding provided by the United Kingdom Ec-
onomic and Social Research Council in conjunction with the Prop-
erty, Transactions and Creativity project organized by Marilyn
Strathern and Eric Hirsch. I thank the other members of that pro-
ject, the four anonymous referees from current anthropology,
and the participants in the seminars at the University of Cambridge,
the University of Kent at Canterbury, and the University of Mich-
igan for their responses to this paper. Michael Brown, Gillian Fee-
ley-Harnik, James Leach, Andrea McDowell, and Michael Wood
also provided particularly helpful comments. The Public Advocate’s
office, Davor Pevec, and Laurence Carucci generously shared key
research materials. I am especially grateful to Bill Graham and the
Public Advocate’s Office in Majuro, the advisory committee, and
the people from Rongelap who contributed to this research. Any
errors of fact or interpretation are solely my responsibility.
Before the river was not like this;
it makes me feel like crying.
These days, this place is ruined,
so I feel like crying.
Where I used to make gardens,
the mud banks have built up.
Where I used to catch prawns and fish,
there is an empty pool. . .
So I feel like crying.
Before it wasn’t like this.
We had no difficulty finding food in our garden or
wild game.
We had everything that we needed.
Now we are suffering and I wonder why.
d u r i k e m y a t , 1996
A significant counterpoint to the exuberant claims made
for the benefits of globalization are native people’s ex-
pressions of loss associated with the transformation of
their societies, including relocation from traditional
lands, threats to the continuity of their languages (Hill
and Hill 1986, Kulick 1992, Nettle and Romaine 2000,
although see Warren 1998) and the reduction of political
autonomy (Cultural Survival 1993, Dean and Levi n.d.,
Gray 1997, Maybury-Lewis 1997, Ramos 1998). The
sense of loss is especially pronounced in the wake of
environmental disasters that damage local land and re-
sources, including oil spills, exposure to nuclear radia-
tion, deforestation, and the toxic impacts of mining.
In ethnographic research with people living down-
stream from the Ok Tedi copper and gold mine in Papua
New Guinea, I have described how pollution has affected
local relationships to the landscape (Kirsch 1997a, n.d.).
Tailings and other mine wastes have poisoned local riv-
ers, destroyed several hundred kilometers of rain forest,
ruined rich garden land, and precipitated the decline of
local fauna. These problems have forced many of the
communities living downstream from the mine to de-
pend on compensation provided by the US$500 million
settlement of their lawsuit against the Australian cor-
poration BHP, the majority shareholder and operating
partner of the mine (Kirsch 1997a). Whereas local his-
tories were once intimately associated with the land-
scape, the destruction of the places where these events
occurred has prompted these communities to reformu-
late their narratives of the past in chronological terms.
Their magic, which addresses the animals and the other
beings with whom they share the rain forest, is now
questioned given the disappearance of its audience. Local
accounts of these changes convey a profound sense of
loss, as is illustrated by Duri Kemyat’s lament above
(Kirsch n.d.).
The theme of loss has echoes throughout the indige-
nous world, often in association with damages to and/
or displacement from their land. Deborah Rose (1996:
167
168 F c u r r e n t a n t h ro p o l o g y Volume 42, Number 2, April 2001
20–21), for example, describes the Aboriginal
characterization of land that is no longer being managed
by its caretakers as “a loss of life, a loss of life support
systems, and a loss of relationships among living things
and their country. For many Aboriginal people, this ‘wild’
[i.e., land that is no longer maintained through fire] has
a quality of deep loneliness.” Richard Baker (1999:179),
also writing about Aboriginal Australia, quotes an in-
formant as saying, “We have lost all our everything.”
Looking out across a changing landscape, the Fuyuge of
Papua New Guinea anticipate the growing impacts of
mining, including new social boundaries and the poten-
tial “loss of [their] way of life or culture” (Hirsch 2000).
Verena Keck (1998) has considered the various threats
posed to traditional knowledge in the Pacific, particu-
larly knowledge directly related to the material world.
A distinctive feature of indigenous responses to dis-
possession and environmental degradation is the claim
of “culture loss.” The concept of culture loss poses a
problem of analysis for anthropologists given contem-
porary definitions of culture as a process that continually
undergoes change rather than something which can be
damaged or lost. Marshall Sahlins (1993:4) points out
that defining culture in this way “has the effect of erasing
the logical and ontological continuities involved in the
different ways that societies interpret and respond to the
imperialist conjuncture. If culture must be conceived as
always and only changing, lest one commit the mortal
sin of essentialism, there can be no such thing as identity
. . . let alone continuity.” To completely naturalize
change also obscures what is lost or forgotten.
In this essay I argue that the notion of cultural property
rights can be used to address this critical blind spot of
the culture concept, in which loss is unseen or under-
valued. In particular, I will show how the concept of
cultural property rights can help to identify the referents
of indigenous discourse about culture loss. Cultural
property rights, as Marilyn Strathern (1999b:177) ob-
serves, imply new forms of integration and new ways of
organizing persons and collectivities. These rights are
intended to prevent loss of property, knowledge, bodily
integrity, or creation itself and of the value of the things
that they may beget. Cultural property rights offer po-
tential resources as ideas and things move into new con-
texts, orders of signification, and economic regimes of
commodification. They can also make visible the losses
experienced by indigenous communities.
Simon Harrison (1999:11) has suggested that concerns
about cultural appropriation—the desire to protect “cul-
tural practices and symbols against unauthorised use or
reproduction by outsiders”—are a form of boundary
maintenance parallel to defensive efforts that seek to
minimize the intrusion of foreign ideas or practices. Mi-
chael Brown (1998) has raised concerns about the use of
legal regimes to limit acts of cultural appropriation, most
notably their implications for the unrestricted flow of
information that is central to (certain domains of) liberal
democratic society. Brown also wonders whether the ex-
tension of legal restrictions to cultural property might
in fact facilitate its commodification and/or limit in-
novation and creation. Balanced against Brown’s objec-
tions to cultural property rights, however, are the polit-
ical resources that they might provide for indigenous
communities, including enhanced control over what cir-
culates, for property rights can restrict as well as facil-
itate distribution.
The examples of indigenous discourse considered here
suggest that loss has recently become a critical site for
the objectification of culture, raising questions that are
distinct from the dilemmas of cultural appropriation.
While there is a long anthropological history of discus-
sion about culture loss, including the allegory of Ishi,
the last of the Yahi Indians (Kroeber 1976), and Ruth
Benedict’s (1960:34) metaphor of a broken cup signifying
“the loss of something that had value equal to that of
life itself, the whole fabric of . . . [a] people’s standards
and beliefs,” my argument is about the disappearance
not of entire societies or ways of life but of particular
things—knowledge, ideas, and practices of local value.
The concept of cultural property rights can provide the
means to identify these losses, which might otherwise
be obscured or ignored. While the problems raised by
questions about culture loss are particularly salient with
respect to indigenous communities because of shared co-
lonial and postcolonial experiences, they are by no
means limited to them.
I develop my argument through the examination of
recent court proceedings held in response to nuclear
weapons testing by the U.S. government in the Marshall
Islands during the 1940s and ’50s.2 In particular, I focus
on the testimony of anthropologists, lawyers, and judges
in the Nuclear Claims Tribunal in the Republic of the
Marshall Islands, which was established to adjudicate
claims regarding damage and loss to persons and property
resulting from exposure to radiation and other destruc-
tive impacts of nuclear testing.3 I also make reference to
related courtroom debates about cultural property in
Australia and environmental disasters in Alaska and
Papua New Guinea. Central to all of these cases is the
intersection of property, culture, and loss.4
The Nature of Loss
If property is a manifestation of social relations (Hann
1998; C. Rose 1994:227), then so is loss. What are the
kinds of things or relations that can be lost, and what
are the contexts in which loss is implicated? The notion
of loss appears to have two primary registers. It may refer
2. The documentary film Half life, produced by Dennis O’Rourke
(1986), provides an excellent overview of the Bravo test and the role
of the U.S. government in nuclear testing in the Marshall Islands.
3. I do not claim ethnographic authority for the Marshall Islands;
this argument is analytic rather than descriptive or interpretive.
My intention is to explain how claims about culture loss might be
understood rather than to promote a particular compensatory
regime.
4. See Kirsch (1997b) for a discussion of indigenous efforts to locate
the problems of environmental degradation in social and moral
domains and Strathern’s (1999c:229–33) comments on this process.

to possession—to the objects or property for which one
might claim rights or ownership. Loss in this guise im-
plies value and property relations; it may therefore be
possible to gain new understandings of property by ex-
amining responses to loss. In other contexts, however,
such as the intimate losses associated with grief, loss
may be improperly referenced to property relations, as
one does not necessarily hold comparable rights to per-
sons as to things. Here it is possible to speak of loss in
relation to the notion of kinship and belonging rather
than possession. I suggest that the relationship implied
by cultural property rights may be a form of belonging
as well as a kind of possession. The case before us re-
quires that we take as an empirical question the kinds
of relationships that the Marshallese have toward their
land: are they modeled after relations of kin, of property,
or both? I will consider this issue with respect to local
knowledge, subsistence production, and attachments to
place. These examples raise questions about the alien-
ation of property that is ordinarily regarded as
inalienable.
Any discussion of loss must also take its productive
possibilities into account. In order to form relationships,
people must separate themselves from one another (see
Strathern 1988), although differentiation in the social
realm is not ordinarily conceived of in terms of loss. Yet
in marriage, for example, people move into other cate-
gories of kin, other lineages. This is simultaneously a
loss to their natal clan and the precondition for new
kinds of social relations, for productive as well as repro-
ductive relations of exchange. Similarly, the dynamics
of memory and forgetting, the entropic tendencies of rit-
ual knowledge, and the incompleteness of the intergen-
erational transmission of knowledge all pose questions
about the possibility of loss. Yet loss may be integral to
these systems in that it permits innovation and
improvisation.
In the case before us, however, of nuclear testing in
the Pacific and its consequences, it is difficult to con-
ceptualize the losses experienced by the people affected
by nuclear testing as productive. Their land was not
transformed into something of value; rather, it was de-
stroyed because it was only of value to the U.S. govern-
ment in its potential loss.5 This is negative reciprocity
writ large across the landscape: the wholesale destruc-
tion of things (property, land, memory) and social rela-
tions organized through land, as well as the capacity for
reproducing these relationships in place.
It might be argued that in compensation claims, people
seek to establish relationships with the parties respon-
sible for the loss or damage and to acquire a replacement
for what has been lost. Yet in the Marshall Islands there
is a fundamental incommensurability between what was
taken and what might be given back in the form of com-
5. Commenting on the naming of women’s two-piece bathing suits
after Bikini Atoll, Teresia Teaiwa (1994:87) argues: “The sexist dy-
namic that the bikini performs—the objectification through exces-
sive visibility—inverts the colonial dynamics that have occurred
during nuclear testing in the Pacific, objectification by rendering
invisible.”
k i r s c h Lost Worlds F 169
pensation. When an exact equivalent is unavailable, the
substitute is always inferior to the original, perpetuating
the sense of loss (see Schieffelin 1976:109–12). The issue
arises both in the payment of monetary compensation
and in attempts to imagine the possibilities of compen-
sation in kind.
Finally, it is necessary to consider the responses that
narratives of loss can evoke in an audience given the
proliferation of environmental and other disasters in the
past century and our increased exposure to these events
through the media. Bikini, Bhopal, Chernobyl, the Exxon
Valdez, and Ok Tedi are iconic of the destructive capac-
ity of 20th-century industry and military power, but sit-
uating these events too abstractly in time and space
makes them perhaps too easily interchangeable, too easy
to let go (see Strathern 1999a:54–63). By focusing on the
problem of loss, however, and reembedding these events
in social relations, it may be possible to slow the move-
ment of images long enough and to reduce their scale
sufficiently to carry out the necessary work of analysis.
Nuclear Wasteland
From 1946 until 1958, the United States tested 67 nu-
clear weapons in the Marshall Islands. The most pow-
erful of these tests was the Bravo shot, a 15-megaton
device (1,000 times the power of the bomb exploded over
Hiroshima) detonated on March 1, 1954, at Bikini Atoll
(Barker 1997:291). Bravo was engineered to maximize ra-
dioactive fallout, which was carried by the wind to the
east, reaching the inhabited atoll of Rongelap (Alcalay
1992:48). A second sun rose in the western sky that
morning, followed by the roar of thunder, winds at tor-
nado strength, and earthquakes (Toyosaki 1986:49). Sev-
eral hours later, radioactive fallout rained down on the
island. People brushed the powder from their food and
ate; they cleared it from their water cisterns and drank;
children swimming in the lagoon put it in their hair and
pretended that it was soap. Shortly thereafter, the 64
people on Rongelap that day began to suffer the ill-effects
of acute radiation exposure: their hair fell out, their skin
was burned, they began to vomit, and they suffered from
a thirst that water could not quench (interview with Li-
jon Eknilang, 1999).6
Two days later, the U.S. Navy evacuated the people of
Rongelap; they were later resettled on Ejit Island in Ma-
juro Atoll, at the center of the Marshall Islands (Weisgall
1994:303). In 1957, three years after Bravo, the people of
Rongelap returned home (Kiste 1974:194). They were as-
sured that the background levels of radiation were within
the limits of safety. A medical team from the Brookhaven
National Laboratory visited the island annually to mon-
itor the long-term consequences of their exposure to ra-
6. In addition to the 64 persons on Rongelap at the time of the
Bravo test, another 18 were on the nearby atoll of Alinginae, in-
cluding 4 pregnant women who gave birth during the period of
relocation. Thus the total number of exposed persons, according to
the U.S. government, including the 4 in utero, is 86 (Bill Graham,
personal communication, 2000).
170 F c u r r e n t a n t h ro p o l o g y Volume 42, Number 2, April 2001
diation. Yet the people of Rongelap were never fully in-
formed about their increased exposure to risk from the
contaminated food and water that they consumed (Bar-
ker 1997:295). Today the Marshallese have the highest
rates of certain types of cancer in the Pacific and unusual
numbers of miscarriages and birth defects.
The incidences of cancer and childhood deaths from
leukemia, combined with the release of additional in-
formation about their exposure to radiation, prompted
the community to leave its atoll again in 1985, 31 years
after its initial exposure. The Rongelap people currently
reside in Ebeye, adjacent to the proving grounds for U.S.
“Star Wars” technology in Kwajalein Lagoon, in Mejatto,
and in the capital of Majuro. Funds have been set aside
by the United States government to rehabilitate their
home atoll, although there is dispute over the appropriate
level of risk: the 100-millirem radiation standard used
by the U.S. Department of Energy and the Nuclear Reg-
ulatory Commission, which may be achievable, or the
more cautious Environmental Protection Agency stan-
dard of 15 millirems, which might delay resettlement for
many years.
A formal agreement between the Marshall Islands and
the U.S. government was reached in 1983 in which the
United States formally accepted responsibility for loss
and damage to property and persons resulting from its
nuclear testing program.7 As part of the negotiated com-
pact between the United States and the Republic of the
Marshall Islands, a claims tribunal with the jurisdication
to “render determination upon all claims, past and fu-
ture,” was established in 1987. The tribunal has begun
to pay compensation for the health effects of radiation
and is currently hearing class action claims for property
damage, loss, and suffering on Enewetak and Bikini, the
two sites for weapons testing.
In 1999, I was briefly engaged as an adviser to the
Public Advocate’s office in the Marshall Islands to assist
in the preparation of a report to the Nuclear Claims Tri-
bunal regarding land values for Rongelap.8 I draw on this
research and on the comparable but more advanced
claims presented to the tribunal by the people of Ene-
wetak, who lived in exile for 33 years as a result of nu-
clear testing. Central to the hearings on Enewetak were
written reports and oral testimony provided by the an-
thropologists Nancy Pollock and Laurence Carucci, act-
7. The agreement came into effect in 1986 (Bill Graham, personal
communication, 2000).
8. The motivation for the project was given as follows: “In this
unique and unusual quest for assessing the value of land in a non-
market environment, for the purposes of awarding just compen-
sation, claimants are not suggesting that the Tribunal ignore the
transactional indicators that do exist. They are suggesting, however,
that other factors such as tradition and custom must also be given
due consideration to ensure that justice is done. It is therefore the
intent of the claimants to involve knowledgeable anthropologists,
sociologists, and others with experience and understanding of the
importance of land in the Marshalls throughout the appraisal pro-
cess to ensure that the valuations ultimately reached are truly rel-
evant” (Graham and Lowe 1998). The other anthropologists in-
volved in this project were Holly Barker and Barbara Rose Johnston,
who have written separately on these issues (Barker and Johnston
2000).
ing on behalf of the Defender of the Fund for the Nuclear
Claims Tribunal and the people of Enewetak respec-
tively.9 I focus on courtroom debate about the definition
and significance of property, culture, and loss.
The Context of Claims for Loss
Indigenous claims about culture loss are increasingly as-
sociated with political and legal contexts in which com-
munities seek reparations for past injustices.10 The so-
ciologist John Torpey (2001) has described the recent
florescence of forums that address such claims, distin-
guishing between acts of violence and injustice com-
mitted during World War II, the transition to democracy
in countries that have suffered from state terrorism and
other authoritarian practices, and claims made by indig-
enous communities against states dominated by the de-
scendants of European settlers.11 Restitution is sought in
terms of monetary compensation and the return of prop-
erty, policies of rehabilitation, and/or the negotiation of
novel accommodations between local autonomy and
state sovereignty. The institutionalization of these fo-
rums and the legal statutes through which they are or-
ganized—tribunals, truth commissions, land rights hear-
ings, and heritage legislation—influence the form and
content of the claims that are advanced.
James Weiner (1999) addresses this issue in his analysis
of the Hindmarsh Island controversy in southern Aus-
tralia. He describes the legislative processes governing
Aboriginal heritage claims as a form of elicitation that
shapes the practices they seek to protect. The dispute in
question concerned a claim regarding Aboriginal
women’s rituals (or “business”) associated with a pro-
posed site for commercial development. The courts did
not recognize culture as a contemporary process of val-
uation, relying on the more restricted criteria of histor-
9. Pollock (1992:20) is the author of These Roots Remain, a com-
parative study of food habits in the central and eastern Pacific,
which draws on 15 months of fieldwork on Namu Atoll in the
Marshall Islands from 1967 to 1969. Laurence Carucci (1997:xi) is
the author of Nuclear Nativity, an ethnography of ritual and
exchange on Enewetak, which draws on more than three years of
ethnographic research between 1976 and 1996.
10. In her written submission to the Nuclear Claims Tribunal, Pol-
lock (1999:1) described the historical and institutional dimensions
of claims about culture loss in the following terms: “The issue of
‘cultural loss’ is currently a subject of much debate in international
fields as indigenous people assert their claims against uninvited
disruptions to their lives. Reparations sought include claims for
loss of land and all its cultural meanings, loss of a way of life that
had been passed down from ancestors, loss of social interactions
leading to the ongoing viability of society, loss of the basis of in-
digenous belief systems and loss of the right to self-determination.
The assumption [of the anthropologist] is that these elements of
culture are not static but continually readjust to current and past
contexts. But the contexts being highlighted in this debate are all
ones where the loss was derived from impositions by major powers,
colonial powers, that exerted their power over minority states to
achieve . . . [their] goals, both economic and strategic.”
11. Torpey (2001) has also suggested that contemporary claims for
reparations made against states by historically victimized groups
are an outgrowth of political responses to the Holocaust.

ical significance and continuity. When the Aboriginal
women elected to protect their claims to secret ritual
knowledge by refusing to testify in court, the developers
were granted permission to construct a bridge on the
disputed site.12 The participants in the debate failed to
recognize how heritage legislation evoked a response
that was focused on political rights and interests.
Whereas Australian heritage protection requires Ab-
original communities to demonstrate the continuity of
local traditions, the process is reversed in the Marshall
Islands: the Nuclear Claims Tribunal, which provides
compensation for damage and loss, obligates commu-
nities to demonstrate a break with the past. Much as
Aboriginal culture is elicited in part through political
processes in Australia, Marshallese claims about culture
loss are influenced by the legal processes through which
they are adjudicated.
While the protection of cultural heritage has assumed
the guise of a universal imperative, culturally specific
claims of loss are not necessarily as well received. The
issue of culture loss, for example, figured significantly
in courtroom debates about the impact of the 1989 Exxon
Valdez oil spill in Alaska, which released over 11 million
gallons of crude oil into Prince William Sound. Accord-
ing to the anthropologist Joseph Jorgensen’s (1995) anal-
ysis of that case, social scientists testifying on behalf of
the indigenous plaintiffs used a definition of culture that
was later discredited by both the opposing anthropologist
and the court. They argued (in Jorgensen 1995:2) that
damage to any core element [of a society] (e.g., natu-
ral resource base or kinship system) damages the
culture and the people. . . . Because subsistence is
the basis of modern Alutiiq culture, the oil spill . . .
damaged that culture in a multitude of ways . . .
[and] to the extent that Alutiiq people’s subsistence,
the most fundamental basis of their culture and life,
remains disrupted, they and their culture have been
damaged.
Judge Holland rejected the reification of culture implied
by this argument, determining instead that “villagers
cannot collect damages for harm that was alleged to have
been suffered by native culture” (p. 2). While acknowl-
edging that “the Exxon Valdez was a disaster of major
proportions,” he concluded that “it did not deprive
Alaska natives of their culture” (p. 5). He based his opin-
ion on the view that culture is “deeply embedded in the
mind and the heart” and is therefore undiminished by
external events such as environmental disaster (p. 5).
The courts also ruled that the Alutiiq people had been
deprived of access to resources, prompting a negotiated
settlement with Exxon for US$20 million. However,
12. Consider Deborah Rose’s (1996:2) comments on this subject:
“During the course of my work in New South Wales, Aboriginal
people have told me time and again that because they have lost so
much, they are not prepared to speak publicly about their knowl-
edge in any detail. They fear that they will lose control of that
which remains.”
k i r s c h Lost Worlds F 171
Judge Holland refused to recognize cultural differences
between native and nonnative fishermen with respect to
the impact of the oil spill. His position was supported
by the testimony of the distinguished American cultural
anthropologist Paul Bohannan, who had been engaged by
Exxon. In his deposition to the courts, Bohannan defined
culture as a strategy for adaptation, “[a] basic device for
surviving and prospering—a set of ideas and artifacts by
means of which human beings adapt to the environment,
including the social environment” (p. 9). He argued that
Alutiiq culture and its core meanings were not substan-
tially affected by the oil spill. Finally, he concluded that
the impact of the natural disaster was equivalent for all
of those persons affected, regardless of ethnic or cultural
identity, declaring, “I believe the Alaska natives are no
different from anybody else in the matter” (p. 11).13 The
judge agreed that there was no basis for distinguishing
between the claims for loss of the two communities;
cultural difference was irrelevant to his findings. “All
Alaskans have the right to lead subsistence lifestyles,
not just Alaska natives,” Holland (1996:167) later
explained.14
Legal Determination of Loss
The analytic challenge in the Marshall Islands case is to
make visible the referents of claims about culture loss,
while the political challenge is to do this with reference
to existing legal categories. The latter task is framed by
two opposing opinions. On one side is the view expressed
by Phillip Okney (1999:17), the Defender of the Fund,
who argued against the Enewetak claim for consequen-
tial damages, including hunger, deprivation, isolation,
and physical distress, resulting from their relocation. He
was equally dismissive of claims for what he character-
13. In contrast, Jorgensen (1995) argues that there are substantive
differences between the two communities, native and nonnative.
He makes the following observation about native choices
post–Exxon Valdez: “Packing up and leaving . . . is not the native
solution to adversity. . . . Native cultural traditions, as instanced
by the nexus of kinship and friendship obligations, facilitate re-
maining in place, while sentiments and ideas about place and space
influence a person’s resolve to stay” (p. 20). Jorgensen (p. 4) also
argues that natives are “very different from nonnatives” in terms
of the “ethics that they express and practice, . . . in the ways and
extent to which they participate in their communities, in the net-
works and activities in which they engage, . . . in their family-
household organizations, and, if class is an issue, in their education,
occupations, incomes, political knowledge and participation in po-
litical affairs.” He also demonstrates that there are substantial dif-
ferences between the two communities in terms of “subsistence
activities, knowledge of the environment, ideas about the environ-
ment, sentiment about the environment, and sharing activities,”
all of which are relevant with respect to the consequences of the
oil spill (p. 56).
14. Berger (1985:64) argues that there is support for both positions
on indigenous difference in Alaska: while the 1971 Alaska Native
Claims Settlement Act extinguished “aboriginal rights of hunting
and fishing,” the Alaska National Interest Lands Conservation Act
of 1980 “found it necessary to protect subsistence for Native people
on a different basis than for non-Native people,” citing a special
relationship between subsistence and native “cultural existence.”
172 F c u r r e n t a n t h ro p o l o g y Volume 42, Number 2, April 2001
ized as the “rather attenuated and ethereal injuries of
‘mental suffering,’ ‘loss of cultural heritage and a cus-
tomary and traditional way of life’ and the ‘loss of home-
land.’” Okney asserted that these claims are “uncertain,
speculative and disallowed” by the tribunal, given that
they are not sufficiently associated with property.
Rather, the claims “affix to the individual who makes
up part of the whole which is claimed to have suffered
the injury.” He concluded that “the human being is not
property such as one makes claim for in eminent domain
or in the case of inverse condemnation.”15
Okney’s position on appropriate recompense for the
people of Enewetak was governed by the application of
the strictest possible test for determining the market
value of property: “Only that which is capable of sale to
a willing buyer can be properly considered for an award
of damage.” He presented the following fictional model
of the “willing seller” and the “willing buyer” (p. 21):
The willing seller is found, as held in J. O. Powel et
al. v. Shelby County, 130 So 2d 170 (1961) to be a
seller not forced to sell (to disallow reduced values)
and the willing buyer is a buyer not required to buy
(to disallow inflated values). Under the reasoning in
Powel the willing seller is conceived to be a seller
who would not be influenced by sentimental attach-
ments to property and the willing buyer is also con-
sidered to be immune to the sentimental attributes
of property. It is the fiction of the prudent buyer and
the prudent seller that the courts employ and not
the sentimental seller and the sentimental buyer.
This rationale, as applied in Powel, dictate[s] that
the sentimental value of the homestead [is] not al-
lowed as an element of damage.
Okney acknowledged “that ethics demand that within
the confines of negotiations for leaseholds that the gov-
ernment recognize the unique place of land rights in the
life and law of the Marshall Islands. . . . The attendant
changes in the lives of the lessors are obviously consid-
ered and taken into consideration when fixing the
amount of compensation to be received by the lessors”
(p. 2). While willing to consider the positive cultural val-
ues of land associated with its use, Okney rejected the
possible (negative) values associated with its loss.
Okney’s position must be taken seriously, because as
Defender of the Fund he attempts to set limits on the
compensation paid by the Nuclear Claims Tribunal. Yet
it is not clear that the market provides an adequate mea-
sure of the value of land in the Marshall Islands. An
alternative perspective on the potential scope of property
claims was articulated in the case of Eisenring v. Kansas
Turnpike Authority, cited in a property assessment for
15. Eminent domain refers to “the inherent power of a govern-
mental entity to take privately owned property, esp. land, and con-
vert it to public use, subject to reasonable compensation for the
taking,” whereas inverse condemnation refers to “an action brought
by a property owner for compensation from a governmental entity
that has taken the owner’s property without bringing formal con-
demnation proceedings” (Garner 1999:287, 541).
Bikini Atoll (KANSAS-Eisenring v. Kansas Turnpike Au-
thority, 183 Kan 774, 332 P [2nd] 539 [1958], citing Trea-
tise; emphasis added):
The absence of market value, in the sense that there
is a lack of evidence of comparable sales, does not
prevent recovery by the owner in the event of con-
demnation. It occasionally happens that a parcel of
real estate or a leasehold interest taken by eminent
domain is of such a nature, or is held or has been
improved in such a manner, that, while it serves a
useful purpose to its owner, he would be unable to
sell it at anything like its real value. Where the
usual means of ascertaining market value are lack-
ing, or other means must from necessity of the case
be resorted to, it is proper to determine the market
value by considering the intrinsic value of the prop-
erty, and its value to the owners for their special
purposes. The owner of the property taken is not re-
quired under such circumstances to make any pecu-
niary sacrifices. He is entitled to whatever the prop-
erty is worth to him, or anyone else, for any purpose
to which it is adapted. These special uses, or pur-
poses to which the property is adapted must be
real—founded upon facts capable of proof—and not
merely speculative or imaginary. If the owner has
adopted a peculiar mode of using the land by which
he derives profit, and he is to be deprived of that
use, justice requires that he be compensated for the
loss to himself. It is the value which he has, and of
which he is deprived, which must be made good by
compensation.
The ruling creates an opening for determinations of value
that exist beyond the scope of the market, including cul-
tural property rights.
In his testimony before the Nuclear Claims Tribunal,
the anthropologist and Enewetak ethnographer Carucci
contrasted the values that Americans and Europeans
“hold for their land” with the values of the Marshallese
“about, with and for their land” (Nuclear Claims Tri-
bunal 1999a).16 He noted that Americans move on av-
erage six times during their lifetimes and treat land as a
commodity, “something that is used, purchased and
sold.” Relationships to place are temporary, and land is
“something that one can buy, utilize for a short period
of time, and pass on.” Our attachment to place, in Car-
ucci’s estimation, is “quite modest.” In contrast, the
Marshallese regard land as a “different kind of entity,”
an element “of one’s very person” and an “integral part
of who people are and how they situate themselves in
the world.” Their “sense of self, both personal and cul-
16. Unless otherwise indicated, all quotations from Carucci are
taken from his oral testimony (Nuclear Claims Tribunal 1999a).
See also Carucci and Maifeld (1999).

tural, is deeply embedded in a piece of land,” their weto
or land parcel.17
Carucci explained that land in the Marshall Islands is
highly valued both because it is so limited in quantity18
and because it “represents the collective labor of gen-
eration[s] . . . of human activity”:
Living persons are but a minor piece of those genera-
tions of time that link people through their land and
through that land to an extended history. . . . Living
in a place, working in a place, changing that land
into a piece of one’s own being makes [a person] one
with that land. Equally, consuming the products of
that land continues and completes the cycle through
which one comes to take on a total identity as per-
son and place that will exist not only momentarily
. . . but in perpetuity. . . .
Carucci’s testimony suggests that the people of Ene-
wetak use the idiom of kinship and belonging to con-
ceptualize their relations to their land.
In the following sections I consider several examples
of loss experienced by the Marshallese as a result of dam-
age to their land and prolonged exile from their home
atolls. In particular, I focus on land and its significance
for local knowledge, subsistence production, and rela-
tions to place. I will argue that these relationships reflect
both ownership and belonging, raising questions about
the alienation of property regarded as inalienable.
Property as a Way of Knowing
David Anderson (1998) has suggested that for reindeer
herders in Siberia “property is a way of knowing,” that
“knowing the land properly . . . is what legitimated their
right to take wood, water and animals from the land,
whilst at the same time explaining their capacity to do
so” (p. 69). Paul Sillitoe (1998a) has argued that the tran-
sition from capital-intensive to information-intensive
technology and the emphasis on participation in devel-
opment have created new demands for local knowledge,
especially in relation to the environment, and recom-
mended that anthropologists position themselves as
knowledge brokers to facilitate this process. His respon-
dents suggest that it may prove more difficult than Sil-
litoe envisions to convert indigenous understandings
into other forms of knowledge, in part because they tend
to be contingent and local rather than systematized and
universal, but agree that alternative forms of knowledge
have value even if not fully translatable. The most im-
portant dimension of local knowledge may not even be
specific information per se but particular strategies for
17. Annette Weiner (1992:104) has argued that “taking a possession
that so completely represents a group’s social identity as well as
an individual owner’s identity and giving it to someone outside the
group is a powerful transfer of one’s own and one’s group’s very
substance.”
18. As Barker (1997:293) notes, “In a nation with just 70 square
miles of land, land is by no means expendable.”
k i r s c h Lost Worlds F 173
learning about the natural world and applying the re-
sulting insights—practices which may themselves dif-
ferentiate indigenous from scientific knowledge (Ellen
1998). Different ways of knowing may be not necessarily
more or less accurate but more or less appropriate ac-
cording to the context and the audience (Forsyth 1998).
In other words, indigenous knowledge is very much
local knowledge in the sense that it is closely linked to
specific environments. The people of Enewetak suffered
greatly on Ujelang, a remote, uninhabited, and largely
desolate atoll. In his testimony before the tribunal, Car-
ucci referred to the absence of the species of pandanus
used by women to weave mats and the lack of the mature
breadfruit trees needed to build canoes: “Group organ-
ized tasks like building canoes fell apart. . . . This was
an atoll that [lacked] the products that it was supposed
to have.” Absence from their home atolls and the en-
vironments in which their knowledge was applicable
posed a challenge to its continuity. Judge James Plasman
asked Carucci for clarification: “The question of sailing
canoes and the loss of the means to traditionally main-
tain and operate and build these canoes . . . was [that] a
loss of culture that people have suffered?” Carucci re-
sponded: “[The] real loss was the whole generation of
young men who have grown up without the ability to
practice under the most skilled of these men who knew
how to shape a canoe properly. . . . Enewetak canoes are
quite unique. I don’t [know] . . . if there is a possibility
of re-developing those skills.”
The anthropologist Nancy Pollock, testifying for the
Defender of the Fund, challenged Carucci’s claims about
the fragility of this knowledge during cross-examination
by Davor Pevec, attorney for the people of Enewetak:
Pevec: [If these resources] are not in existence or
[can]not . . . be imported, people would not be able
to maintain the traditional knowledge which you
have described.
Pollock: It does not disappear.
Pevec: It does not disappear, but they are not able to
actually practice it.
Pollock: What is happening with canoe culture at
the moment is that there is a lot of old knowledge
which is being resurrected around the Pacific be-
cause of interest in canoes.
Pevec: Unless you have the resources on your atoll
. . . [He is cut off by Pollock].
Pollock: No. People are very innovative. . . . Every-
where I go in the Pacific, I see small children, one of
the things they love to do is . . . build little canoes,
out of paper or whatever they’ve got. . . . It doesn’t
die, it remains. It is not easily replicated in the full
size, but in the children’s representations, the toy,
that knowledge can be seen.
174 F c u r r e n t a n t h ro p o l o g y Volume 42, Number 2, April 2001
Marshallese canoes include the long-distance sailing ves-
sel known as walap, as much as 30 m in length, which
can transport 40 passengers and is built for travel on the
open sea between atolls; the mid-sized tipnol, which car-
ries 10 passengers and is used for rapid transport and
fishing in the lagoons and the open sea; and the small
rowing canoe known as the korkor, which may also have
sails and carries 1–2 persons for fishing and traveling
within the lagoon. In the past, every family owned at
least one mid-sized canoe and a small rowing canoe.
Construction of these vessels required mature breadfruit
trees for the hull and outrigger and a variety of other
woods. People planted and tended trees that years later
would be used to build canoes. The complex require-
ments of canoe building, only hinted at here, raise ques-
tions about the effective intergenerational transmission
of knowledge. In the absence of a robust tradition of
literacy, such knowledge is reproduced through concrete
acts of teaching and use, and the loss of access to the
resources necessary for canoe building is of consequence
for the communication of these practices across gener-
ational lines. Property can be a way of knowing, and local
knowledge may depend on continued access to land and
resources. Women on Enewetak no longer teach their
daughters how to weave mats because the necessary va-
rieties of pandanus are unavailable, and men no longer
teach their nephews and sons how to build sailing canoes
because they do not have the raw materials. Already the
knowledge of how to construct and maintain the long-
distance sailing canoes of Enewetak, unique in design,
may have been forgotten (Nuclear Claims Tribunal
1999a). Such knowledge is cultural property, and its vul-
nerability in the sense of being local should not diminish
its value in the courts. It is neither imaginary nor
speculative.
The Value of Subsistence Production
During interviews on Majuro, informants described how
they had become dependent on the cash economy since
their relocation from Rongelap. Contemporary substi-
tutes for subsistence practices require capital invest-
ment; whereas fishing grounds were once accessible to
all without restriction, boats and fuel are now required
in order to fish (interview with Johnsay Riklon, 1999).
A man from Rongelap described the transformation in
terms of the restrictions on personal autonomy: “If you
live in town, you are like a guest in someone’s house,
[whereas] on your own land, you feel freedom” (interview
with Ken Kedi, 1999). The loss of their subsistence econ-
omy has transformed local relations of production, gen-
erating new forms of socioeconomic inequality.19
19. Health risks posed by radiation create an additional paradox of
place for the people from Rongelap. The risk in visiting the lagoons
or islands affected by nuclear testing is minimal; Bikini Atoll,
ground zero for many of the tests, now markets itself as an eco-
In Australia, the courts have recognized the losses as-
sociated with damage to subsistence economies in hear-
ings about the environmental impact of the Ok Tedi
mine (Kirsch 1997a). The case against the mine did not
address damage to property, because the courts were un-
able to hear claims about land held under customary land
tenure in New Guinea (Gordon 1997:153). Alternatively,
lawyers for the plaintiffs made the novel argument that
people living downstream from the mine had suffered a
loss due to its impact on their subsistence economy.
Judge J. Byrne (1995:16) endorsed the underlying prin-
ciple, determining that
to restrict the duty of care to cases of pure economic
loss would be to deny a remedy to those whose life
is substantially, if not entirely, outside an economic
system which uses money as a medium of exchange.
It was put that, in the case of subsistence dwellers,
loss of the things necessary for subsistence may be
seen as akin to economic loss. If the plaintiffs are
unable or less able to have or enjoy those things
which are necessary for their subsistence as a result
of the defendants’ negligent conduct of the mine,
they must look elsewhere for them, perhaps to ob-
tain them by purchase or barter or perhaps to obtain
some substitute.
The case against the Ok Tedi mine established a prec-
edent for the right to engage in subsistence production.
In the negotiated settlement of the case, a commercial
fisherman was awarded financial compensation for lost
revenues. Yet, in contrast to the situation in the Exxon
Valdez case, cultural differences were taken into con-
sideration with respect to the reliance on natural re-
sources of subsistence economies in the form of financial
support for the restoration of local sustainability. The
Australian courts recognized in subsistence production
a set of economic rights, relations, and values compa-
rable to those which organize the ownership of property
in capitalist societies.
Anthropologists have observed that land and kinship
are often “mutually implicated” in subsistence econo-
mies (Hirsch 1995:9).20 Sahlins (1999:xvii) has recently
described the social and cultural continuities of indige-
tourism destination for scuba-diving (see www.bikiniatoll.com).
The primary danger is from local foodstuffs consumed over an ex-
tended period of time. Radiation thus inverts the notion of property:
while in the past their relationship to land implied exclusive use
of its resources, today the risks of cumulative exposure to radiation
prevent them from exploiting these resources, even though strang-
ers who lack historical connections to Rongelap, including fishing
boats from Southeast Asia, are not prevented from doing so (inter-
view with Ken Kedi, 1999).
20. For Aboriginal Australians, “the relationships between people
and their country are intense, intimate, full of responsibility, and,
when all is well, friendly. It is a kinship relationship, and like
relations among kin, there are obligations of nurturance. People
and country take care of each other” (D. Rose 1996:49).

nous populations, especially northern hunters, in spite
of widespread economic and political change:
Their long, intensive and varied engagements with
the international market economy have not funda-
mentally altered their customary organizations of
production, modes of ownership and resource con-
trol, division of labor, or patterns of distribution and
consumption; nor have their extended kinship and
community bonds been dissolved or the economic
and social obligations thereof fallen off; neither have
social (cum “spiritual”) relations to nature disap-
peared; and they have not lost their cultural identi-
ties, not even when they live in white folks’ towns.
Hunters and gatherers still actively engage in these pur-
suits, he points out, and these practices have become
central to their identities much as they have remained
essential for their social relations. In what he describes
as the “indigenization of modernity,” these communi-
ties have put capitalism in service of their subsistence
practices. Yet these activities are contingent upon their
continued access to land and resources, which elsewhere
has been jeopardized or impaired by the destructive con-
sequences of modern technologies of warfare and devel-
opment (see Brody 1988). The division of people into
social categories through their relationships to land and
resources is the basis of relations of production in many
indigenous societies and an important means through
which these relationships are reproduced; a community’s
capacity to support itself through subsistence production
is simultaneously a matter of belonging and a matter of
possession.
Place and Community
The anthropologist Roger Keesing (1989:19) once argued
that Pacific interest in land rights was a postcolonial
invention, part of a broader creation of “myths of an-
cestral ways of life that serve as powerful political sym-
bols.” “Land, and spiritual connection to it, could not
have, other than in a context of invasion and displace-
ment and alienation, the ideological significance that it
acquires in such a context” (p. 33). While land has ac-
quired new significance throughout the Pacific, com-
parable to the changes in Aboriginal valuation of their
own traditions described by Weiner (1999), Keesing has
been criticized for ignoring the value that land had for
people in the past (Trask 1991), particularly for island
communities where land is limited and population den-
sities approach local carrying capacity.
In their testimony to the Nuclear Claims Tribunal,
Carucci and Pollock offered contrasting interpretations
of the relationships between people and land in Ene-
wetak. Like Keesing’s critics, Carucci argued that the
relationship between past and present was the most sa-
lient for the people of Enewetak. When they returned to
their home atoll 30 years after it had been used to test
k i r s c h Lost Worlds F 175
nuclear weapons, they were stunned by its transforma-
tion: “all the markers of [their] sense of place and history,
and their sense of their own person [were] transformed.”
Carucci also described the disjunction between the
“new” and the “old” Enewetak, which now exists only
in their memories: the “sacred landscapes ha[ve] been
destroyed . . . all of the embedded stories . . . [of] their
own past [and] the activities of their ancestors going back
to the first moment in time [are] no longer attached . . .
to the physical locations with which they are associated
in people’s minds.” The resulting “dissonance between
what once existed and what [now] exists . . . presents
people with a problem in terms of establishing a mean-
ingful Enewetak identity.”
While Pollock acknowledged Carucci’s claim that
“land anchors people in place . . . and gives them iden-
tity,” she disagreed with him on the nature of this re-
lationship, arguing that “identity and . . . land exist be-
yond the economic, beyond the surface layer, beyond the
map that we see here [in the courtroom]. It is a spiritual
tie to land and it is a tie to land that can never be broken.
. . .” Relations to land are a “very important continuing
factor that was not severed as Dr. Carucci argued . . .
because the spiritual tie persists over time and over
space, no matter where you are.”
Pollock supported her claim to the spiritual primacy
of ties to land in two ways. She referred to her conver-
sations with people in Majuro: “[When I] asked ‘Where
are you from?’ . . . they would [name their home atoll].
They . . . may not have ever been there, but they still
have very strong ties to land.” Pollock also argued that
the “Marshallese people are very proud of their history
of movement. . . . They move constantly and the res-
urrection of the canoe and current interest in canoe
building is all part of that. They’ve always moved freely
using sailing canoes and linking up with the lands where
they have kin relations.”21 The debate between the two
anthropologists hinges on competing views of culture,
although they do not make their positions on the subject
explicit.
To clarify these issues, I suggest a lateral shift to an
alternative set of definitions. Arjun Appadurai (1995:209)
posits a distinction between neighborhood, which he de-
fines as a “context, or set of contexts within which
meaningful social action can be both generated and in-
terpreted,” and “ethnoscape,” his neologism for collec-
tive identities that transcend place, as in the case of dias-
poric cultures. While an ethnoscape is independent of
place, a neighborhood is a thing which can, of course, be
destroyed. The dissolution of a neighborhood—a histor-
21. Pollock also suggests that relocation has a cultural precedent
in the Marshall Islands: “[The] Iroij or chief of the Marshalls . . .
had the power to [order people] to relocate. Relocation, as I under-
stand it, is a part of Marshallese culture” (Nuclear Claims Tribunal
1999b). Here she conflates two very different processes—the au-
thority to ostracize members of the community by forcing them
to relocate, which is effective as a form of punishment precisely
because these persons are separated from their social group, and
the power to remove the entire community from its home atoll,
which has no local precedent.
176 F c u r r e n t a n t h ro p o l o g y Volume 42, Number 2, April 2001
ical accumulation of experience and identity—not only
represents a concrete loss but also affects the production
of local subjects. A spiritual attachment to place is not
the same as living on one’s home atoll, nor are travelers
the same as migrants; prior to the bomb, Marshallese
sailors had homes to which they could return at will.
The distinction between ethnoscape and neighborhood
must be qualified, however. Research on diaspora com-
munities emphasizes the costs of disrupting local rela-
tions to place (e.g., Lovell 1998, Olwig and Hastrup 1997).
Diasporic experience is always suffused with nostalgia,
itself an awareness of loss, and accompanied by new
strategies to preserve memory and identity. The severing
of connections between people and place always entails
loss.
Property and Alienability
In the debates before the Nuclear Claims Tribunal, the
issue of cultural difference emerged most significantly
in relation to property.22 The legal scholar Carol Rose
(1994:296) has argued that “seeing property is an act of
imagination—and seeing property also reflects some of
the cultural limitations on imagination.”23 She describes
how the concept of property is constrained by assump-
tions about economic value and governed by commodity
logic that assumes the detachability of persons and
things. This limitation of Anglo-American property re-
gimes is particularly telling in the Marshall Islands case.
Largely concealed from view at the Nuclear Claims
Tribunal, albeit implicit in Carucci’s arguments about
Enewetak relationships to land and place, is the as-
sumption of alienability—the view that all forms of prop-
erty are inherently convertible into other forms of prop-
erty. Annette Weiner (1992:4) has emphasized the
significance of inalienable possessions in Pacific socie-
ties, arguing that certain forms of property provide con-
tinuity to social relations by presenting an alternative
to the ephemeral nature of human existence. The im-
portance of these objects transcends their exchange
value, and their loss poses a threat not only to their
owners but also to the group of which they are members
because their historicity preserves memories of the past
(p. 6).
Margaret Radin (1993:197) identifies alienability as the
central paradox of Anglo-American property theory. On
22. Carol Rose (1994:50) asks provocatively: “What are we trying
to accomplish with a property regime? If we know the answer to
this most general question about property, we can begin to under-
stand what we include in property and why, and what we leave out
and why, and thus what kinds of governmental actions we deem
to take property and why we so deem them. Though these questions
clearly involve issues of theory, they are also intensely practical;
and practice itself should yield some information about which the-
ory or theories best inform our general vision of property.”
23. Carol Rose notes (1994:295; see also D. Rose 1999) that in Aus-
tralia, “many European settlers simply did not see anything at all
that signified indigenous entitlement, . . . [and] many justified their
moves [onto Aboriginal lands] . . . by what they said was the emp-
tiness of the land.”
the one hand, “property is necessary to give people
‘roots,’ stable surroundings, a context of control over the
environment, [and] a context of stable expectations that
fosters autonomy and personality” (p. 197). On the other
hand, economic considerations require that property be
subject to market forces. To resolve the contradiction,
Radin proposes the disaggregation of the concept of prop-
erty, arguing that “some categories of property rights do
justifiably become bound up with persons and then
ought not to be prima facie subject to rearrangement by
market forces” (p. 197). Like the legal precedent in Ei-
senring v. Kansas Turnpike Authority discussed above,
Radin’s view provides an opening for the consideration
of cultural property rights, for the designation of what
is and what is not properly alienable is a cultural rather
than an analytical matter.
This observation is significant with respect to the Mar-
shall Islands case. In her testimony before the Nuclear
Claims Tribunal, Pollock asserted that material condi-
tions (including market forces) do not affect the rela-
tionship between persons and land in the Marshall Is-
lands. Her position is comparable to the view expressed
by Judge Holland in the Exxon Valdez case that culture
is located in our “minds and hearts” and therefore un-
affected by external events. Furthermore, she ignored the
problem of alienability in the Marshalls; whereas indi-
vidual blocks of land may, subject to local restrictions,
be leased to others, there is no historical precedent for
the alienation of an entire atoll (Zorn 1993:126–29).
When inalienable possessions are treated as alienable
property, as occurred during nuclear testing in the Mar-
shall Islands, the resulting loss is social as well as ma-
terial and thus inadequately represented by its market
value alone.
The alienation of land is of general concern for indig-
enous peoples; as I suggested earlier, the loss of otherwise
inalienable homelands can jeopardize not only the ma-
terial conditions of survival, including subsistence prac-
tices, but also the requirements of social reproduction
as embedded in kinship relations. Local knowledge and
relations to place may be affected as well. The concept
of loss, with its dual registers of belonging and posses-
sion, provides an alternative understanding of property,
helping to bridge what Rose (1994:5) has described as
“the peculiar gap between property-as-thing and prop-
erty-as-relationship.”
It is worth asking why the discussion of loss in the
Marshall Islands should be framed in terms of property
models at all.24 One might propose alternative strategies
to analyze their losses. For example, Carucci describes
Enewetak experiences of anomie, as expressed by the
Marshallese idiom of jebw we, a term that means to drift
at sea and is used to describe the “conceptually and emo-
tionally disconcerting state of ‘having no direction’”
24. Consider what Deborah Rose (1999:16) writes about the Mabo
court decision in Australia as an inadequate remedy for colonial
injustice: “The peculiarity of the case was to establish the existence
of a form of property; while any number of terrible things happen
in colonisation . . . people cannot be deprived of their property
without certain legalities being in order.”

(Carucci and Maifeld 1999:3–4).25 This idiom clearly ex-
presses some of the pain, loss, and suffering experienced
as a result of nuclear testing and relocation. Yet the Nu-
clear Claims Tribunal requires an interpretation that cor-
responds to Western models of property and loss. Even
judges sympathetic to the claims of people from Ron-
gelap and Enewetak will find their options limited—and
their analogies wanting—unless anthropologists provide
them with the tools of analysis necessary to rule on these
issues.
Conclusions
I want to present a final image, of a tribunal hearing held
in the High Court of the Republic of the Marshall Islands,
the back benches crowded with interested plaintiffs from
Enewetak, the front of the room occupied by three jus-
tices (one Marshallese and two American) and the op-
posing lawyers seated beside the anthropologists whom
they have engaged as expert witnesses. I quote Judge
Plasman, who addresses the implications of Carucci’s
testimony (Nuclear Claims Tribunal 1999a):
When we talk about culture loss . . . are we to some
extent faced with a Humpty Dumpty situation
where the pieces are broken and in some respects [it
will not] be possible to put Humpty Dumpty back
together again? . . . The tribunal obviously has to
struggle with this question. To the extent that the
claim is that there has been a loss of culture, to
what extent is the cure going to be worse than the
sickness? People don’t want to go back to the prime-
val garden of Eden. . . . Culture changes and accom-
modation has to be made between the old and the
new. Where do you see that balance? Perhaps [Car-
ucci’s] comment that [this] needs to be done by the
people of Enewetak themselves . . . [is the right
answer].
Culture has a new set of interlocutors and new contexts
for its deliberation as judges, juries, and expert witnesses
deploy alternative definitions: something which can be
lost or damaged, something embedded in our minds and
hearts, a mode of adaptation, a process of change. In the
Exxon Valdez case, Bohannan’s emphasis on the human
capacity for adaptation prevented him from recognizing
important cultural differences. By arguing that culture
is largely independent of the material world, Pollock pre-
sented an essentialized view of Marshallese culture. Car-
ucci persuasively argued the case for cultural relativism,
identifying fundamental differences between Enewetak
25. Pollock disputes Carucci’s reference to anomie, which she de-
scribes as being “very much taken from Western ideas and trying
to account for [the] response to the cash economy.” She argues that
the concept is inapplicable in the Enewetak case: “People felt that
[their relocation] was beyond their control, but they tried their best
to adjust. That does not mean that they suffered any anomie” as a
result. She implies that because people are able to adapt to chal-
lenging circumstances, they do not incur any loss.
k i r s c h Lost Worlds F 177
and American conceptions of property. There is no an-
thropological consensus on how to describe the complex
histories of indigenous communities and the problem of
culture loss. In one of the most widely read accounts of
how the concept of culture is deployed in the courtroom,
James Clifford’s (1988:277-346) analysis of the unsuc-
cessful application for federal recognition by the Mash-
pee Indians of Cape Cod, metaphors of holism and con-
tinuity prevented the courts from appreciating their
history of accommodation, political negotiation, and cul-
tural innovation. Anthropological arguments about cul-
ture must be able to account for the contradictory de-
mands that the courts placed on the Mashpee and the
people of Rongelap: to recognize change while simulta-
neously acknowledging loss.
The proliferation of legal proceedings about culture
raises other important issues for anthropologists to con-
sider. Legal forums that adjudicate claims of loss might
be seen to further commodification by establishing mon-
etary values for cultural property which previously ex-
isted outside of economic domains. Money is hardly an
ideal substitute, although it can be the means to other
ends—to decontaminate Rongelap Atoll, for exam-
ple—which cannot be achieved in any other way. Legal
activism can provide important political and economic
resources for indigenous peoples, as the Ok Tedi case
illustrates, particularly when the terms of the debate are
set and the mechanisms of justice controlled by non-
indigenous bodies. Nonetheless, not all losses are com-
pensable or even judicable. The acknowledgment of loss,
however, along with appropriate acts of commemora-
tion, historical documentation, and, where relevant, ac-
ceptance of responsibility, and the implementation of
reforms designed to prevent past wrongs from recurring
are partial but legitimate responses to claims of culture
loss.
The problem of culture loss raises questions about
agency and responsibility. What distinguishes between
man-made disasters and their natural counterparts, such
as the seasonal typhoons that can inflict heavy damage
on fragile Marshallese atolls and force temporary relo-
cation? Carucci’s answer to this question during the tri-
bunal was that the Marshallese are well adapted to the
risks and challenges of atoll life. Of course, the scale and
scope of the transformations wrought by the weather and
by nuclear weapons differ tremendously. Yet it may well
be that claims about culture loss will arise more fre-
quently in the context of assigning social responsibility
for negative events.
Why privilege the Rongelap claim or indigenous
claims more generally if the experiences are not unique?
In a general sense, claims of culture loss may be a di-
agnostic feature of our time, given the unprecedented
pace of technological change and its social consequences.
The shift to a postindustrial economy in Europe and
America, for example, has greatly reduced or even elim-
inated entire economic sectors, including small-scale
farming and coal mining, often at considerable cost to
the associated communities, including impoverishment,
displacement, and a profound sense of loss (Read 1996,
178 F c u r r e n t a n t h ro p o l o g y Volume 42, Number 2, April 2001
Charlesworth 2000). Yet claims of loss are particularly
salient for indigenous communities, which frequently
have special ties to land and place that, while they have
analogues elsewhere, differ in relation to the way that
these societies organize and reproduce themselves
(Kirsch n.d.). The analysis of the contemporary predic-
aments of indigeneity may provide the impetus for a
general rethinking of the theoretical challenges associ-
ated with culture change, cultural property rights, and
loss.
Anthropological debates on cultural property rights
(e.g., Dove 1996, Brush 1996, Brown 1998) have focused
primarily on the issues of cultural appropriation, com-
modification, and potential restrictions on the circula-
tion of knowledge and creative processes. I have chosen
an alternative starting point, suggesting that ethno-
graphic studies of loss may enrich our understandings of
property and, conversely, that the concept of cultural
property rights may inform ongoing debates—legal, in-
digenous, and anthropological—about the problem of
culture loss.
Finally, I hope that this paper has been able to still for
a moment the circulation of images of environmental
disasters like Bikini, Bhopal, the Exxon Valdez, and Ok
Tedi. Only by reembedding these events and their con-
sequences in a network of social relations and thereby
reducing their scale is it possible to address them both
analytically and politically.
Comments
g a y m . b i e ry - h a m i l t o n
Latin American and Caribbean Affairs, Rollins
College, 1000 Holt Ave., 2761, Winter Park, Fla.
32789, U.S.A. (gbieryh@rollins.edu). 12 xi 00
Kirsch shows that different definitions of culture used
by anthropologists in court have real-world repercus-
sions on indigenous peoples who have been impacted by
human-made disasters. Wisely, he doesn’t call for a uni-
fied definition of culture but instead proposes a consid-
eration of cultural property rights, which includes loss.
However, as anthropologists we recognize that culture
is integrated in that how people make a living and use
their environment has direct ties to their ideas, artifacts,
core values, and meanings. When people lose their ability
to make a living, they experience major changes in their
ideational realm. All aspects of their culture will change,
and in my fieldwork people who had experienced such
change certainly expressed feelings of loss (Biery-Ham-
ilton 1993). In fact, in the Tucuruı́-Marabá region of Pará,
Brazil, in the Amazon, many caboclos were relocated in
the 1980s (Mougeot 1986) because of the Tucuruı́ Hy-
droelectric Dam and a transition to private property. In
the process both relocatees and people who did not move
lost access to critical river and forest resources necessary
to sustain their former lifeways (Biery-Hamilton
1993, 1994). Caboclos—Amazonian riverside peasants of
mixed European, Amerindian, and African descent
—employ indigenous strategies for subsistence and col-
lect forest resources for the market (see Parker 1985).
Although they are not considered indigenous people, it
has been argued that they should be given special ac-
commodations, such as recognition of common land ten-
ure, because their economic activities are relatively more
sustainable than those of other social groups given their
special knowledge and methods of resource use (cf. An-
derson 1990). In fact, Nugent (1993) argues that they
should be regarded as a distinct group. If we accept Nu-
gent’s argument, then they are like the groups Kirsch
discusses with regard to cultural property rights.
For at least 100 years caboclos in the region had gath-
ered rubber and Brazil nuts, mined for diamonds in the
Tocantins River for the market, and gardened, hunted,
and gathered other forest products for their subsistence.
The diamond mining and most of the Brazil nut gath-
ering were market-oriented via patron-client relations
whereby caboclos received access to resources in
exchange for the product. However, in at least one place
the people themselves controlled access to a large area
of Brazil nuts that they held in common and controlled
by community sanctions that ensured a level playing
field (Biery-Hamilton 1994). The extractive industry was
almost entirely destroyed during the 1980s by the de-
velopment projects initiated by the Brazilian govern-
ment, which made no provisions for the caboclos’ econ-
omy because they were not indigenous. Some people
received indemnification from the power company for
the land they had in production at the time, their houses
and other buildings, and their orchards, but the money
they received was a small amount and was eaten up by
inflation in the 1980s. However, no lump sum of money
could sustain them in the long run in the same way as
their former subsistence strategies. They lost their tra-
ditional means of making a living, experienced economic
specialization and stratification, and were no longer in
control of their economic options or political process
(Biery-Hamilton 1994, 1996). Moreover, since locals were
no longer making their living using these traditional
strategies, the younger generation was not learning about
them experientially, and specialized knowledge about
horticulture, hunting, wild plants, and water currents
was being lost.
As in other places where people lose access to land
and resources from development and relocation projects,
these caboclos lost former strategies of subsistence pro-
duction, connections to place, and local knowledge.
Their previous economic strategies were associated with
their common access to resources and land, and the loss
they experienced meant their cultural impoverishment
economically, politically, socially, spiritually, and ex-
perientially. Caboclos’ ideas of common access to re-
sources and social sanctions were necessary aspects of
their subsistence strategies. Kirsch points to the fallacy
of separating ideas from economy. If anthropologists can-
not agree on a definition of culture, perhaps we can agree
on the usefulness of his notion of cultural property rights

in integrating the ideational and material realms of
culture.
Anthropologists who assist in court cases like the ones
Kirsch describes are forced to make culture something
that is legible (Scott 1998) to a judge who will decide.
The basis of the decision is going to be a simplification
of what is a very complex understanding of culture, for
example, whether culture is in the head and heart or
grounded in the physical world and the way people make
a living. Judges, influenced by anthropologists, have the
power to decide what culture is and what it is not, and
thereafter people can claim a loss and be indemnified for
it only if it fits that definition. Kirsch’s definition rec-
ognizes the complexity of local history and culture but
provides a way of articulating particularistic aspects into
a broader framework that might be intelligible to non-
anthropologist decision makers. Further, his concept of
cultural property rights has the potential to give anthro-
pologists and indigenous groups a way of influencing lit-
igation and policy in their behalf. The concept is prom-
ising, too, for groups like caboclos, so that they can
protect their livelihoods and contribute their expertise
to the critical effort of developing a more sustainable
resource management program in the Amazon.
m i c h a e l f . b ro w n
Department of Anthropology and Sociology, Williams
College, Williamstown, Mass. 01267, U.S.A.
(mbrown@williams.edu). 22 xi 00
Kirsch’s essay is an important contribution to the wid-
ening circle of work that registers the reification of cul-
ture, its transformation from an abstraction largely de-
rived from belief and behavior into something that a
given population “possesses” and can therefore “lose.”
This turn of events has led some anthropologists to re-
nounce the culture concept altogether. But culture has
become a social fact, one that is readily reconceived as
a form of property. It is too late to disown this child of
our discipline, however discomfiting its current
behavior.
The cases that Kirsch uses to support his argument
are convincing. I suspect that few readers will challenge
his assertion that egregious wrongs were done, serious
losses suffered. Still unspecified by his analysis, however,
are the limits of culture-loss claims—the outer bound-
aries beyond which the culture-loss concept loses its
force.
Kirsch presents a plausible case for seeing indigenous
peoples as uniquely vulnerable to cultural disruption
when environmental disasters affect their communities.
From this he concludes they they merit special consid-
eration in processes of remediation. But exactly who is
indigenous? As John R. Bowen (2000) has shown, defi-
nitions of indigenousness that have emerged from global
human-rights forums are often misleading when applied
to populations outside of regions reshaped by European
settler colonialism (e.g., North America, Australia, and
New Zealand). Even in places where First Peoples should
k i r s c h Lost Worlds F 179
be easy to identify, intermarriage and cultural blending
make it increasingly difficult to define the boundaries of
the indigenous (Gonzales 1998). What are we to make,
for instance, of the emergence in the Mexico-U.S. bor-
derlands of the Mexica movement, whose members have
jettisoned an identity as Hispanics or Latinos in favor of
reconnection with their Indian roots? “We are not Span-
iards. We are the Mexica of Anahuac!” declares one of
the movement’s websites. “Artificial European bound-
aries on our land can never sever our ties to our common
Olmeca mother civilization and our shared Maya, Teo-
tihuacan and Nahuatl-Mexica culture, or our shared op-
pression and exploitation” (Chicano Mexicano Mexica
Empowerment Committee n.d.). Even if we accept that
people are free to reinvent their identities as they like,
it is hard to justify giving this group the same special
standing that existing law grants to the Hopi or the
Pitjantjantjara.
More vexing still is the question of when claims of
culture loss would expire, if ever. We live in an era when
demands for slavery-related reparations are taken seri-
ously by some in the United States (see, for instance,
Barkan 2000) and when a judicial struggle over owner-
ship of gold salvaged from an 18th-century shipwreck
can give rise to the suggestion that the booty be returned
to South American Indians rather than repatriated to
Spain (Broad 2000). Kirsch proposes no statute of limi-
tations for culture-loss claims, leaving the door open to
a panorama of litigation mining the darkest chapters of
human history. Although the turn toward revisiting an-
cient wrongs opens new career opportunities for lawyers,
it is hard to see how it will help us confront the political,
economic, and ecological challenges of the future.
The search for a workable framework for culture-loss
claims is further hampered by the overblown rhetoric to
which published work on the subject of cultural rights
seems fatally inclined. An example, by no means excep-
tional, is Tove Skutnabb-Kangas’s (1999:8) insistence
that discriminatory language policies qualify as geno-
cide. The logic of Skutnabb-Kangas’s claim runs some-
thing like this: (1) the United Nations Convention on
Genocide recognizes the forcible relocation of children
from their families to another group as a form of geno-
cide; (2) coercive language policies alienate children from
their own group and orient them to another; (3) ergo,
state practices that favor one language over another con-
stitute genocide. Such twisted casuistry does little to
advance the legitimacy of cultural damage claims in the
minds of legislators, jurists, and the general public.
Kirsch’s admirably measured approach to these com-
plex issues doubtless reflects his experience in the ap-
plied world. Although I am generally convinced by his
argument, I hope that he will develop it further by tack-
ling knottier questions about the social and temporal
boundaries beyond which claims of cultural damage or
loss may be discounted. A clear definition of the limits
of his approach will immensely strengthen the position
of groups with legitimate grievances. Without it, I fear,
the culture-loss concept can be too easily dismissed as
another example of the politics of victimization.
180 F c u r r e n t a n t h ro p o l o g y Volume 42, Number 2, April 2001
s t e p h e n b . b ru s h
Department of Human and Community Development,
University of California, Davis, Calif. 95616, U.S.A.
15 xi 00
Kirsch invokes the concept of property but fails to ground
his discussion of culture loss in a theoretical or histor-
ically informed vision of property as a social institution.
He neglects the important dichotomy of property as a
utilitarian construct versus property as a natural right.
This dichotomy underlies much of the current conflict
over extending property rights to areas such as indige-
nous knowledge and cultural expression. The view of
property as a social contract underlies much 20th-cen-
tury social analysis and is derived from Hohfeld’s (1913)
seminal article. In this formulation, property is under-
stood as a set of social relations that are explicitly ac-
knowledged and sanctioned. Recognition has different
sources, but the social utility of privileging a particular
group is nearly always present. Implicit costs to other
parties are likewise acknowledged. It is precisely this
construction that has driven the legal decisions that
Kirsch laments. An individual, group, or anthropologist
may embrace the concept of cultural property, but this
notion has little value unless it is also embraced by other
social groups and institutions. The tragedy of colonized
people such as the Marshallese and Native Americans
obscures the fundamental theoretical issues of assigning
or withholding property rights from novel domains. A
property contract in these situations involves both the
dominant and dominated parties that confront each
other in the cases reviewed by Kirsch. Under Hohfeld’s
(1913) reasoning, recognition of cultural property must
be beneficial both to those who “own” culture and to
those who recognize that ownership. Unilateral decla-
rations do not suffice because they do not generate the
obligation to respect another’s rights. There are other
formulations of property that might be entertained to
allow something like cultural property, but these need
to be laid out and weighed against the prevailing theory
of property involved in the cases reviewed by Kirsch.
The negotiation over what is and is not property in-
evitably must confront the issue of the public domain
(Brush 1999), a concept that is absent in Kirsch’s paper.
A large, theoretically rich, and relevant literature exists
on social impact analysis and the internalization of
“costs” that have hitherto gone unrecognized (e.g., Coase
1960). Anthropologists who wish to propose new forms
of property would be well served by addressing that lit-
erature. Again, the extremity of double victimization un-
der colonization and nuclear testing may obscure the
issue of the wider social benefits and costs that are at
play in recognizing culture as property and culture loss
as deserving compensation.
david a. cleveland
Department of Anthropology and the Environmental
Studies Program, University of California, Santa
Barbara, CA 93106-3210, U.S.A. (clevelan@
lifesci.ucsb.edu). 27 xi 00
Kirsch does an excellent job of identifying a critical the-
oretical and practical problem for anthropology—that
contemporary definitions of culture as fluid and dynamic
make it extremely difficult to assess and redress cultural
loss by indigenous communities as a result of biophys-
ical, economic, and social globalization. His method for
“the work of analysis” required to address this problem
is twofold: (1) reembedding indigenous loss in social re-
lations in order to “slow the movement of images” and
“reduce their scale” and (2) using a concept of “cultural
property rights,” which includes knowledge of things as
property and of people as relationships. He is successful
in demonstrating that indigenous loss of physical place
is often also loss of cultural property in the sense of
subjective or mental loss.
I have two suggestions to complement his proposal.
First, I think that we need to take more seriously possible
problems with attempts to grant rights to indigenous
cultural property in terms of Western property rights.
For example, on the basis of research in Indonesia, Dove
(1993) has suggested that the introduction of Western
intellectual property rights regimes will likely only
worsen the situation because of the destruction of local
resources not only by outsiders but by local people them-
selves. The long struggle for recognition of Native Amer-
icans’ water rights and for compensation for their loss
of these rights has resulted in legal remedies based on
the dominant society’s standards, which equate rights
with the level of resource “use.” In many cases this has
strengthened large-scale commercial irrigation develop-
ment on Indian land, with subsequent loss of indigenous
knowledge and landscapes connected with traditional
small-scale, family-based irrigation (Cleveland 1998).
If instead we are to attempt to construct alternative
“rights” that interface between indigenous and Western
rights, we return to the original problem as stated by
Kirsch, because rights are also fluid in cultural time and
space—they are culturally constructed. In a world of 6
billion humans that may well be environmentally un-
sustainable, there are multiple claims of rights to in-
creasingly limited resources, and any attempt to con-
struct new rights regimes must consider these absolute
limits. Therefore, the social construction of rights will
also be to some extent contingent on the empirical re-
lationships between culture and the conservation of
place. We must not assume that indigenous peoples nec-
essarily either destroy or conserve their own local
“places” and cultural properties, because there are no
valid theories from which to deduce either position and
there are examples of both. Rather, we need to document
what conditions are correlated with conservation of
place by both indigenous and outside actors and inves-
tigate potential causal relationships. While the results of

this research cannot determine rights, they can help to
inform their social construction.
Second, it is unnecessary to conclude that if indige-
nous knowledge is dependent on local, physical place it
is therefore completely defined by it and thus essentially
different from Western knowledge (Agrawal 1995). There
is a need to develop a coherent intellectual framework
in which indigenous knowledge can interface effectively
with Western science (Sillitoe 1998b). Just as we have
moved beyond definitions of indigenous knowledge as
static and bounded, so we need to move beyond defining
it as essentially different from Western knowledge. An-
thropologists have documented the ability of indigenous
cultures to float free of their physical places to form
virtual communities (Appadurai 1990), using the tools
of modern Western technology to perpetuate themselves
on a global scale. In the same way, indigenous peoples
may benefit not only from modern technology but from
the data and theories of modern science (just as scientists
can benefit from indigenous knowledge). For example,
understanding the conceptual similarities and differ-
ences of the plant-breeding knowledge of farmers and
scientists may facilitate collaboration between them
that results in improvements in farmers’ own terms
(Cleveland, Soleri, and Smith 2000, Soleri et al. 2000).
This is important, because if local peoples are to main-
tain their cultural properties and physical places collab-
oration with outsiders based on the similarities and dif-
ferences between indigenous and Western knowledges
may be critical. If we find similarities, this does not mean
that the power of the scientific over the indigenous will
necessarily increase. The results will depend on how this
information is used and within what power structure,
and therefore we need to understand this power structure
to facilitate an equitable status for indigenous knowledge
in discussions about future development and in the so-
cial construction of rights.
We can make important contributions that comple-
ment Kirsch’s suggestions by encouraging the discussion
and social construction of rights in which indigenous
peoples participate as equals and by documenting the
similarities and differences between indigenous and sci-
entific knowledges and the power structures in which
they operate to contribute to the social construction of
rights and to provide the empirical basis for imple-
menting those rights in the context of locally controlled
change.
arif dirlik
Department of History, Duke University, Durham.
N.C. 27708, U.S.A. (adirlik@duke.edu). 20 xi 00
Kirsch’s discussion is important for pointing to a ques-
tion that goes beyond anthropology in its implications:
the importance of politics even as the political is inter-
pellated into the juridical. If this question is to receive
the attention that it deserves, it is important not to dis-
solve it into abstract disciplinary problems of culture
such as cultural universalism or relativism and essen-
k i r s c h Lost Worlds F 181
tialism or hybridity but rather to investigate the political
implications of disciplinary disagreements. Kirsch is
conscientious in his search for a concept that can be
helpful to those in search of justice, and he offers “cul-
tural property rights” as one such concept. But I think
that his respect for disciplinary protocols prevents him
from going a bit farther to raise questions about the po-
litical meaning of the case under discussion, its impli-
cations for problems of domination in the contemporary
world, and the part anthropologists (and others) play in
it.
There are two aspects to the question. The first is the
assumption that claims to culture (or cultural authen-
ticity) may be adjudicated in courts in order to be com-
pensated for “culture loss.” This may seem a strange
question, since courts may be the only venue in which
those who have suffered at the hands of colonialism,
capital, and the military can seek compensation. The
Marshall Islanders who suffered radioactive colonization
at the hands of the United States military can hardly be
blamed for seeking compensation through the courts. It
is confusing the issues, however, to state as Kirsch does
that “indigenous claims about culture loss are increas-
ingly associated with political and legal contexts in
which communities seek reparations for past injustices.”
We ought to know better than to refer to the “political
and legal” in the same breath, especially in a context in
which both politics and legality need to be questioned
in light of claims to cultural difference. In a case such
as that of the Marshall Islanders, the “legal context”
serves to cover up the political, resignation to which may
well be an expression of their ultimate helplessness, es-
pecially where issues of cultural autonomy are in ques-
tion. They can make their claims for justice only in the
language of the jurisprudence and property-rights regime
of those responsible for their plight in the first place. It
may seem a benign act on the part of the United States
to allow them into the courtroom, but the price of ad-
mission is to abide by the very culturally determined
assumptions, rules, procedures of that courtroom, which
already indicates a further erosion of any claims to cul-
tural autonomy. From this perspective, the legalization
of political issues signals a consolidation of hegemony
that remained an incomplete project under formal co-
lonialism or even neocolonialism. It may be argued that
the restriction to litigation of opposition to the legacy
of colonialism testifies to the ultimate victory of colo-
nialism. A concept such as “cultural property rights”
may sharpen disciplinary distinctions over issues of cul-
ture and may provide the plaintiffs with a weapon in the
courtroom, but it also further deepens the hegemony.
A Japan-specialist colleague of mine is fond of observ-
ing that the Japanese could never have a revolution be-
cause it was against the law. The remark is important
for considering issues of politics in the contemporary
world, where it has become nearly impossible to con-
ceive of radical options because such options are indeed
against “the law”—which, although it is a systematic
product of modern capitalism and nationalism and there-
fore founded upon Euro-American cultural norms, is
182 F c u r r e n t a n t h ro p o l o g y Volume 42, Number 2, April 2001
transnationalized with universal claims as the regime of
modernity is globalized. It would obviously be counter-
productive for Marshall Islanders to walk into a court-
room to declare their opposition to such laws and pro-
cedures on the grounds that they were culture- or
system-bound or that they represented a more refined
form of colonialism. They would simply be abandoning
their hopes for compensation—or even recognition. The
legally unthinkable also sets limits on what is politically
thinkable. That is what hegemony is about. This total-
ization of hegemony may also provide a clue to why
opposition to Euro-American hegemony is so often ex-
pressed in the language of fundamentalist essentialism.
This is not just a problem for the Marshall Islanders
or the formerly or currently colonized. Ours seems to be
an age of reparations. What is important is that whereas
in the past the legacies of slavery, colonialism, Nazi
atrocities, the internment of (Japanese) American citi-
zens, genocide of indigenous peoples (including through
nuclear radiation), etc., produced political oppositions
calling for systemic changes to prevent their recurrence,
they now appear as court cases demanding recompense
for past wrongs—on the assumption that these are indeed
past wrongs that an improved present can provide com-
pensation for. It is not very clear what we are to do with
the memories and legacies of these past wrongs once they
have been settled in court. Of more immediate concern
is their relegation to the past when, in some cases, as in
the case of the Marshall Islanders, they may represent
not the end but the final victory of colonialism.
This is what I mean by the interpellation of political
into legal questions. Common to all such litigation is an
assumption that any deviation from liberal norms of pol-
itics is punishable by law, which means, in effect, no
politics outside that which is specified in the legal pro-
cedures of the neoliberal state. The Marshall Islanders
deserve all the help they can get, but the particular route
they follow through the courts itself indicates helpless-
ness before a world of domination that cannot be chal-
lenged for what it is, if not dissolution into its hegemony.
The second aspect of the question is the assumption
that claims to cultural authenticity in a case such as this
one may be authenticated by expert testimony, which is
further evidence of the extent to which colonial practices
persist, armed by postcolonial arguments against cul-
tural authenticity. Depoliticization of the issues at hand
is at work in the very notion of “expert” testimony. But
knowing what we do about past collusion between co-
lonialism and anthropology, we need to inquire whether
such depoliticization serves to disguise a continuing re-
lationship between them, especially where the anthro-
pologist’s testimony is given priority over the self-images
of the natives—as if only the natives’ memories were
subject to constructedness and not the anthropologists’
scholarship. The issue here is not the privileging of na-
tive self-images or some multiculturalist relativism but
rather a need to question the priority given to so-called
scientific expert testimony.
The account that Kirsch offers is testimony to the old
adage that “the more things change, the more they stay
the same.” The interesting thing about the notion of the
“expert” is that what distinguishes one expert from an-
other is technical problems of sources and interpretation
rather than politics—which involves ideologies of cul-
ture and property as well. If I may take issue with Kirsch,
“the debate between the two anthropologists (Carucci
and Pollock, who were involved in this court case)” that
he describes “hinges” not just on “competing views of
culture” but also on two different political sympathies
and appreciations of culture. This may well be the reason
that they never made “their positions on the subject ex-
plicit,” politics obviously being inadmissible as a sup-
porting argument in a court of law. Pollock in this de-
scription appears as an academic who makes oppor-
tunistic use of facile analogies to justify old-fashioned
colonialist arguments. However, the more liberal argu-
ments of Carucci and Kirsch, unable to deviate from the
restrictions of the law and making a political case of the
whole issue, are possibly more revealing of the workings
of power in our times, since they are no more willing to
challenge the value of “expert” testimony.
Kirsch’s account is reminiscent of the story that when
Columbus landed in Hispaniola he read to the natives a
proclamation in Spanish of his takeover of the lands in-
dicated in the name of the majesties who had sponsored
his conquest, to which the natives are supposed to have
nodded in happy assent. The Marshall Islanders are not
the inhabitants of 15th-century Hispaniola, which
makes their case more disturbing; in their case, the sub-
jection to a legal procedure that is the product of a Euro-
American capitalist definition of rights and property is
an assent not to an incomprehensible language but to a
painfully familiar one that, however it may undermine
native practices, must now be accepted as the only lan-
guage in which dissent can be expressed. It is the con-
quest of culture and politics by a juridical language
which no longer recognizes an outside to its domain.
What we need to keep reminding ourselves is that jurid-
ical language itself is founded upon political and cultural
assumptions—which may at least caution against the
reduction of political questions to technical or discipli-
nary ones. Kirsch’s essay does not raise this question,
but it provokes the thought.
virginia dominguez
Department of Anthropology, University of Iowa,
Iowa City, Iowa 52242-1322 (virginia-dominguez@
uiowa.edu). 24 xi 00
Kirsch grounds his argument for the usefulness of the
concept of “cultural property rights” in its ability “to
identify the referents of indigenous discourse about cul-
ture loss.” Using the records of a legal tribunal that has
struggled to make sense of particular indigenous claims
to “culture loss,” he explores “several examples of loss
experienced by the Marshallese as a result of damage to
their land and prolonged exile from their home atolls”
against the challenge of working within a legal frame-
work. While I can imagine responses to this essay that

focus understandably on the pros and cons of translating
the broader issue into a language of legal rights, I think
it is the concept of “culture loss” itself that Kirsch wants
us, the anthropological community, to discuss—at least
in part because so many of us shape our professional
work in terms of a concept of culture and are called upon
to serve as expert witnesses for competing sides.
My own response focuses on a question I find myself
asking: When is a loss “cultural”? Or to reframe it, what
is it that leads particular people to call some losses “cul-
ture losses”? Clearly, this happens in a minority of cases
and, I suspect, in a minority of places or communities.
People experience loss all too often, but they rarely call
it “culture loss” or label what they have lost their “cul-
tural property.” Much of the time we lose something
that matters little or matters a lot for a short period of
time—a bet or a set of keys or even a credit card. It may
be inconvenient, even worrisome, but rarely is it life-
changing. People also lose loved ones to disease or
through accidents, forced displacement, and family
breakups. Rarely do I hear these called “culture losses,”
though the loss is often intense and long-lasting. It is
true that an anthropologist might be moved to label a
particular response to loss cultural, but the point is that
people experiencing loss rarely see it as “culture loss.”
It is personal. It may be a serious blow to a family or
even a self-identified community, but it isn’t “culture
loss.”
Calling a loss cultural clearly signals something
else—something of different dimensions, more akin to
devastation or group extinction. The phrase names a feel-
ing, a fear, a sadness—even though it is easy to hear it
as a legal neologism introduced in court battles today to
gain both additional compensation and the high moral
ground. I think its paradox is that in court battles it can
easily be undermined because both inside and outside
anthropology people use the term “culture” to mean sig-
nificantly different things, thereby leaving judges and
jurors with no clear referent, whereas outside the court-
room it may evoke much more sympathy and enlist
many more supporters precisely because so many people
around the world today use some concept of “culture”
and consider it a good thing. Hence, calling a loss “cul-
ture loss,” I would think, heightens the possibility of
empathy and through empathy at least some form of
satisfaction, if not social justice itself.
Kirsch is right in suggesting that monetary compen-
sation, though useful, is often not the main goal. Charles
Taylor would say that the real issue is recognition, and
I would add that it is recognition in two senses: (1) rec-
ognition of a presence that has often been made invisible
and (2) recognition of wrongs that need to be acknowl-
edged. Rhetoric matters, but, as Nancy Pollock writes in
her 1999 report to the Office of the Defender of the Fund,
Nuclear Claims Tribunal, quoted by Kirsch, we are not
talking about a random collection of local groups invok-
ing a notion of “culture loss” but, rather, about contexts
“where the loss was derived from impositions by major
powers, colonial powers, that exerted their power over
minority states to achieve [their] goals, both economic
k i r s c h Lost Worlds F 183
and strategic.” Something very specific is being said even
when the reference to culture makes it seem diffuse.
I am, however, interested in extensions that Kirsch
implies but does not elaborate on. I am thinking of “cul-
ture loss” as an object of public discourse and even of
legal discourse in settings not involving indigenous
groups or other underempowered communities experi-
encing serious population decline. What is its sociolog-
ical topography? Has it indeed spread beyond indigenous
communities, or has it now become so closely associated
with indigenous movements that we fail to see its “cous-
ins” elsewhere? When French cultural and political
elites, for example, take actions to protect “French cul-
ture” from linguistic and other “intrusions,” many an-
thropologists roll their eyes in mild amusement, but
aren’t these actions, in fact, paralleling indigenous
claims in more ways than all may want to recognize?
We do tend to react differently on the basis of our
tendency to champion the causes of underempowered
groups and to critique structural, symbolic, and physical
forms of violence. The point is evident here as well.
When “culture loss” (or fear of it) is invoked by people
with the social, political, and economic power to affect
millions of lives, I doubt that many of us would struggle
to choose a side in a legal dispute the way we do now
when we confront the dilemma of how to respond when
it is invoked as a strategy for recognition (or even com-
pensation) by others. Kirsch’s notion of cultural property
rights can, indeed, sharpen our eye here. A powerful so-
cial group proclaiming the need to prevent “culture loss”
may claim exclusive rights to many things as its “cul-
tural property”—and the impact is not on hundreds or
thousands but on millions or billions.
a r t u ro e s c o b a r
Department of Anthropology, University of North
Carolina, Chapel Hill, N.C. 27514, U.S.A.
(aescobar@imap.unc.edu). 6 xii 00
Kirsch’s “Lost Worlds” is an intelligent, constructive,
and courageous intervention in the anthropological de-
bates on globalization and culture. Behind it there is no
trace of the long-discarded paradigm of salvage anthro-
pology, nor does this piece reinsert anthropology into the
“savage slot” by discussing issues of indigenous cultural
loss (as, unfortunately, the American Anthropological
Association’s handling of the Neel/Chagnon affair
tended to do). On the contrary, Kirsch seeks to return
the avant-garde of the discipline to the long-standing is-
sue of culture change that anthropology has skirted for
the past two decades while devoting its best efforts to
developing a powerful approach for the study of the pro-
duction of culture under globalization. I think that this
is a theoretical and political project of great importance
to the discipline. Anthropologists have seldom shied
away from discussing the political context and impli-
cations of their work. In recent years, however, we seem
to have become enthralled with the very sophistication
of our analyses—intent on showing in detail the contes-
184 F c u r r e n t a n t h ro p o l o g y Volume 42, Number 2, April 2001
tations, impurities, hybridities, and fluidities of culture
and the traveling, border crossings, and diasporas of cul-
tural production—to the extent that our sense of politics
has become diluted. That our analyses show that power
is negotiated at every level makes us unsure where we
stand vis-à-vis our subjects. This has been particularly
true in North American anthropology, which has mo-
tivated reactions in other parts of the world. Far from
suggesting that Kirsch’s argument is less complex, what
I mean is that this piece, along with others that want to
return the discipline to a more engaged approach to is-
sues of cultural politics, proposes an alternative model
and set of concerns for anthropological work. Models of
“good work” in anthropology come and go, as in any
good normal science. At some level, Kirsch’s paper calls
on us to pluralize those models once again.
We may, for instance, take on again an unfashionable
issue such as “culture loss” and ask what new and per-
haps original problems it poses for anthropology, our un-
derstanding of culture, and the world at large. We may
also be less reluctant to investigate who is making claims
today about “culture” and how. In other words, we may
want to investigate how claims to truth are made in the
name of culture outside anthropology in ways that le-
gitimize particular agendas with which we may or may
not be in agreement. And we may also take a seat by the
side of peoples whose claims to “culture loss” we can
help to conceptualize and defend, perhaps against the
claims of more powerful actors such as judges or even
colleagues on the other side of the fence. Some of these
issues may seem perilously “applied” to some of our
more academic-minded colleagues, but this is precisely
the point: that in another model the boundaries between
“academic” and “applied” and between “knowledge pro-
ducers” (experts/anthropologists) and “users” (local peo-
ple, social movements) are no longer neatly construed.
What we learn, for instance, is that if we take some
people’s claims about culture, place, and nature seriously
we need to rethink our by now strongly naturalized con-
ception of change (Kirsch’s main claim); that in this age
of seemingly inescapable mobility and deterritorializa-
tion people’s sense of belonging and attachment to place
continue to be important sources of cultural production
and mobilized politically to various ends (and there are
more and more anthropologists, archaeologists, and ge-
ographers interested in place); and, finally, that there are
discussions about alternative conceptions of property
and personhood in circles outside of anthropology. In
other words, there is a complex cultural politics around
contested notions of person, nature, property, subsis-
tence, and place that we would do well to incorporate
into our own studies and take a position on. And as the
example of anthropologists Pollock and Carucci dem-
onstrate, these positions can be quite different, which
goes to show that our conceptions of culture count. (I do
not think, however, that Pollock’s conception of culture
is necessarily essentialist. Rather, it is a narrower un-
derstanding of culture as things people hold in their
minds, which lends itself to being thought about as end-
lessly transformed in the manner of the works I have
mentioned. Carucci’s, in contrast, is a more phenome-
nological and practice-based conception of culture as em-
bedded in bodies and places and, thus, eminently sus-
ceptible of being lost.) What are the political tasks we
are called upon to assume as experts in these situations,
and how do these political tasks relate to subaltern strat-
egies for the defense of place and culture or, conversely,
to dominant attempts at cultural reconversion?
As Kirsch says, loss has become a critical site for the
objectification of culture (one might think in similar
terms about the loss of biodiversity in relation to nature
and culture). The language of loss displays incommen-
surability of cultural backgrounds and practices (as in
the example of property developed in the paper); publicly
debated contrasting cultural conceptions in turn suggest
the possibility for a pedagogy of alterity in international
and intercultural negotiations that could be further de-
veloped out of studies such as this one. There is an entire
cultural politics at stake in globalization that we need
to highlight and document ethnographically. I would go
farther than Kirsch in saying that at issue in the cases
he discusses is not just alternative conceptions of prop-
erty and place but different conceptions and practices of
nature and the economy. These conceptions may be im-
portant as we think about the defense of place-based
worlds and, beyond this, contribute to their re/
construction.
b e n fi n n e y
Department of Anthropology, University of Hawaii,
Honolulu, Hawaii, 96815, U.S.A. (bfinney@hawaii
.edu). 30 xi 00
How could anything so seemingly “academic” as culture
theory tie anthropologists up in such tangled knots?
Musings about how people invent their cultures may
make good sense to theorists but appear insulting, ac-
cusatory, and misinformed to those whose cultures are
so labeled. Now anthropologists with opposing cultural
readings are clashing in court over whether the Marshall
Islanders suffered grievous cultural loss over and above
the fictional market value of their atolls when the U.S.
government blew up their islands and/or saturated them
with radioactivity.
Upon returning from the Marshalls to Hawai’i in Oc-
tober 2000 I discovered Kirsch’s cogent paper in my mail-
box. Since I had gone to the Marshalls to discuss with
the Bikini Council a project to revive ancient ways of
navigating, I was jolted to discover from the paper that
the significance of the decline of canoe voyaging had
been contested in expert testimony given by a pair of
anthropologists before the Nuclear Claims Tribunal. In
my discussions with Bikini Council members they had
bitterly charged that their forced exile from Bikini Atoll
to Kili, a lone coral rock without a central lagoon or
sheltered beaches for launching and landing canoes, had
condemned their children and their children’s children
to a life without canoes and skills in ocean sailing and
navigation, seafarers no more. In testifying before the

Nuclear Claims Tribunal, the anthropologist Laurence
Carucci had made virtually the same point concerning
the exile of the Enewetak people from their atoll to an-
other, less well endowed one and their consequent loss
of seafaring skills. Yet Kirsch tells us that Carucci’s fel-
low anthropologist Nancy Pollock denied this loss under
cross-examination by the Enewetak attorney. Instead,
she stressed that such cultural knowledge never totally
disappears and cited the recent revival of canoes and voy-
aging elsewhere in the Pacific as a supporting example.
As someone who has been working in East Polynesia
over the past four decades to revive ancient voyaging
canoes and skills and test these over long sea routes and
has witnessed the tremendous cultural impact of this
effort, it seems apparent to me that the Marshallese have
suffered a grievous cultural loss of seafaring skills
(among others) and along with that a vital part of their
former identity as seafaring farmers and fishers. But it
also seems possible that they may be able to recover
some of that loss with positive cultural and social effect.
That the revival of voyaging could be cited to deny cul-
tural loss has never occurred to me and my colleagues
in Hawai’i, Tahiti, the Cook Islands, and Aotearoa. Voy-
aging canoes and their navigators had disappeared from
East Polynesian seas long before we started. Using eth-
nohistorical and ethnographic sources, and with the help
of the master navigator Mau Piailug (from Satawal Atoll,
Federated States of Micronesia), we set out to re-create
the old sailing canoes and ways of navigating as well as
we could, recognizing that because of the discontinuity
with the old Polynesian masters some skills and tech-
niques might well be lost forever. In this respect the
Marshallese are in a somewhat better position than the
Hawaiians and other East Polynesians. As recently as the
1960s some of them were still sailing their large deep-
sea outrigger canoes (walap), and although these fell out
of use soon thereafter this loss has been recent enough
that there are still some aged masters alive today who
once built, sailed, and navigated them. Over the past
dozen years Dennis Alessio, Alson Kelen, and others of
the organization Waan Aelan in Majel (Canoes of the
Marshall Islands) have been taking advantage of this sit-
uation by having these living treasures work with Mar-
shallese youths, teaching them as together they build
and sail these magnificent canoes.
Lack of regular funding, spells of official indifference,
and a loss of confidence on the part of some Marshallese
in their ability to build, sail, and navigate their tradi-
tional canoes has made progress slow. However, a num-
ber of canoes have been built, and the vanguard of a new
generation is now beginning to sail again. The next
step—before the last of the old navigators pass away—is
to revive the unique Marshallese system of navigating
from island to island by reading the way the deep ocean
swells are deformed as they pass around and between the
atolls.
Rather than argue over the extent and meaning of the
Marshallese loss of voyaging, let us admit that this key
technology has been endangered to the point of extinc-
tion and consider that just compensation would help the
k i r s c h Lost Worlds F 185
Marshallese to revive it in all its former glory. However,
such a program should not be developed as a sop to divert
attention from all that needs to be done to make these
islands livable again and their people whole. If the Ha-
waiian experience is any guide, a voyaging revival could
contribute to the realization of these larger goals. Though
not overtly political, the Hawaiian revival of voyaging
has played a key role in the current sovereignty move-
ment and the uneven progress the Hawaiians have been
making. The pride gained by re-creating their canoes and
methods of wayfinding has encouraged young Hawaiians
to challenge their de facto status as a subjected minority
in their own islands and to work together for common
goals.
tamara giles-vernick
Department of History, University of Virginia,
Charlottesville, Va. 22903, U.S.A. (tg2y@virginia.edu).
21 xi 00
Kirsch has made an important, compelling, and impas-
sioned argument about culture, property rights, loss, and
compensation in the context of environmental disasters.
He seeks to elaborate a concept of culture that allows
us to “recognize change while simultaneously acknowl-
edging loss” by accounting for notions of property as
rights in things, people, knowledge, and places. I admire
Kirsch’s quest for a legally defensible definition that will
compel courts to compensate people in the Marshall Is-
lands, who have suffered horrendous, incalculable losses
from nuclear testing in the 1940s and ’50s. I also believe
that his reconceptualization of culture can be useful in
some contexts, but because he shelters particular con-
cepts and relations from historical change his argument
may not have the wide applicability that he seeks. In
order to strengthen his formulation, he needs to account
for the historical processes by which people produce, de-
bate, and give meaning to categories of “indigeneity,”
“local knowledge,” and “loss.”
Kirsch takes the meaning of “indigeneity” to be self-
evident. “Indigenous” people may be easy to identify in
the Marshall Islands, but elsewhere this category has
been profoundly shaped by historical (and political) pro-
cesses. In Africa, for instance, the meaning of “indige-
nousness” has varied substantially over time and space
and has most often been constructed against other cat-
egories of people—not simply Western scientists but also
geographically mobile agricultural, urban, or “modern”
people. The historical creation of “indigenous peoples”
in some parts of West, Central, and Southern Africa has
relied on arbitrarily delineated spatial and temporal
boundaries that fail to account for the long-term, wide-
spread geographical mobility of all populations (Richards
1996, Giles-Vernick 1999, Crapanzano 1985). And the
purposes of imposing or claiming indigenousness have
varied, from building state power to claiming or allo-
cating rights to particular resources (Giles-Vernick 1999).
In various African countries, some groups of Africans
have self-consciously adopted the label “indigenous” as
186 F c u r r e n t a n t h ro p o l o g y Volume 42, Number 2, April 2001
part of a political effort to gain special rights and pro-
tections from African states (Peters 1996, Hitchcock
1994). Historical change, then, can render the exercise
of identifying “indigenous people” a treacherous one.
As a way of rethinking cultural loss, Kirsch employs
the concept of cultural property, arguing that ways of
knowing, subsistence production, and a sense of place
are about both belonging and possession. Here he makes
some especially convincing contributions, but I do won-
der about his insistence on sheltering certain features of
“local” or “indigenous” knowledge from historical
change (see also Sahlins 1999). Such knowledge can
change not only in its content but in its epistemologies.
There is ample evidence that people can appropriate both
practices and ways of perceiving and thinking about
themselves, their cosmologies, and their environmental
relations. Michelle Kisliuk’s (1998) study of BaAka (so-
called pygmy) performance in the Central African Re-
public shows that these forest dwellers have appropriated
from outsiders not only knowledge but also ways of see-
ing the world. Ajay Skaria’s (1999) environmental history
of the Dangs in western India reveals that forest-dwelling
communities’ engagement with British colonial agents
produced profoundly altered ways of understanding
themselves, their political power, and their
environments.
Finally, it would be useful for Kirsch to interrogate
further the concept of loss in a broader range of social
and historical contexts. “Loss” can have a multitude of
meanings, can pervade a wide range of historical narra-
tives, and can be associated with highly conservative
nostalgia for mythical origins and unity (Chakrabarty
1992, Skaria 1999, Giles-Vernick 2000). A more fully
elaborated and historicized concept of loss might permit
us to distinguish the destruction of cultural property
about which Kirsch writes from a nostalgia that per-
meates wide-ranging narratives about the past.
Kirsch’s essay takes important steps toward develop-
ing a more legally useful definition of culture, but em-
bracing rather than selectively shying away from his-
torical change would make his contributions even more
compelling in parts of the world where we cannot accept
so much at face value.
b. g. karlsson
South Asia Language and Area Center, University of
Chicago, Chicago, Ill. 60637, U.S.A. (beppe.karlson@
uland.uu.se). 25 xi 00
Kirsch’s interrogation of the legal aftermath of the U.S.
nuclear tests in the Marshall Islands and related cases of
displacement of indigenous peoples is most welcome and
opens up a series of questions of the greatest importance.
The tests are part of a chilling story of U.S nuclear im-
perialism. One of the charges in Tierney’s (2000) Dark-
ness in El Dorado is that the U.S. Atomic Energy Com-
mission, which funded Chagnon’s research, used the
Yanomami Indians as a control group in research in
which people were injected with radioactive iodine to
measure mutation rates and other responses to radiation
(pp. 297–300). Kirsch similarly draws attention to the
way in which the Marshall Islanders have been used as
guinea pigs in radiation research.
There are many issues at stake here, but let us con-
centrate on the questions Kirsch raises for discussion.
How can peoples like those of Rongelap Atoll be com-
pensated for the sufferings and loss caused by nuclear
tests or other “environmental disasters”? (I put “envi-
ronmental disasters” in quotation marks to indicate that
the term is somewhat problematic and could perhaps
gain from a bit of unpacking.) How should their suffering
be measured or valued? Does displacement or loss of land
also imply loss of culture? And, finally, what have an-
thropology and anthropologists to offer in cases like this?
Kirsch addresses these questions in relation to court
cases in which compensation claims have been raised by
indigenous peoples and anthropologists are engaged as
expert witnesses both for and against the recognition of
such claims. He suggests that by focusing on “cultural
property rights” one can identify losses which otherwise
might be “obscured or ignored” and that by examining
indigenous discourses on cultural loss we (anthropolo-
gists) can “gain new understandings of property.”
Cultural and intellectual property rights have become
important sites for indigenous struggles, and Kirsch’s ar-
ticle does help us think about these complex issues. Even
so, I am not fully convinced by his argument. First,
whereas he presents his article as an engagement with
cultural loss as an indigenous discourse, in fact he
mainly discusses anthropologists debating cultural loss.
Anthropologists may have theoretical difficulties in an-
alyzing cultural loss “given contemporary definitions of
culture as a process,” but this is a completely different
matter from whether indigenous communities objectify
culture and describe their predicament as that of culture
loss. It seems to be the institutional setup of the Nuclear
Claims Tribunal itself that makes cultural loss an issue
of central importance. That “Marshallese claims about
cultural loss are influenced (my emphasis) by the legal
and political processes” certainly seems an understate-
ment. But, again, as we lack indigenous voices, it is hard
to tell how the Marshallese see things. In the quotation
from an interview with a man relocated from the Ron-
gelap Atoll, it is the loss of freedom and economic self-
reliance that concerns him, and the poem from New
Guinea with which the article opens speaks of loss of
land and all that they could grow on it or extract from
it (fish and prawns from the river, wild game, etc.).
Secondly, is the idea of “cultural property rights” really
the best that anthropology can come up with for assign-
ing value to that which cannot (easily) be translated into
a market value/price? Here I would insist on the question
that Kirsch raises towards the end of the article—why
the Marshallese losses “should be framed in terms of
property models at all.” Expanding the notion of property
might indeed be a way of working the “system” in favor
of marginalized groups, and, to be sure, compensation
claims by indigenous peoples are always articulated in
situations of domination. But in the Marshallese case I

think that more is lost than gained by such a move.
Kirsch was appointed as adviser to the Public Advocate’s
office, which was required to determine appropriate com-
pensation levels, to examine how land was valued by the
people of Rongelap. I suppose that he wanted to find a
way to help them strike as fair a deal as possible at the
tribunal. But rather than translating their profound sense
of loss into the language of property, an alternative po-
litical strategy of the concerned anthropologist might be
to keep insisting on the inalienability of land and to
provide a thick ethnography of how this loss is experi-
enced and expressed. This together with further inves-
tigations into the gross human rights violations caused
by the nuclear test program and advocacy for a new type
of tribunal focusing on Marshallese grievances rather
than nonexistent market values would probably have
been a more effective use of anthropological authority.
In the end, it is the people of Rongelap themselves who
ought to be listened to.
francesca merlan
School of Archaeology and Anthropology, Australian
National University, Canberra 0200, Australia.
(francesca.merlan@anu.edu.au). 16 xi 00
Kirsch’s thematically rich paper is explicit about the so-
cial-justice impulse underlying the project of relativi-
zation he advocates. Definitions of culture in terms of
capacity for continuous change obscure the visibility of
loss and damage, he argues. Contemporary arbiters need
to be provided the tools for analysis of loss and the de-
livery of social justice; ways need to be found to put the
interests of disparate societies into relation. Understand-
ings in terms of “cultural property” make relativization
possible. In Kirsch’s account, the designation “cultural”
seems to mark difference, that which remains incom-
mensurable, and “property” the basis for commensura-
bility. “Loss” in this context refers to those aspects of
relations, concepts, and operations that drop out of the
cultural system to which they have belonged.
Placing evidence of damage and loss from other cul-
tures in relation to Western models of property brings to
light paradoxical connections between the authorita-
tiveness and the historical constructedness of the latter.
Western property notions are a part of the broader system
of uneven development and unequal distributions of re-
sources and power to which the disadvantaged (both
within the West and between it and other recognizable
sections of the world) now appeal for the resolution of
issues of loss and damage. At the same time, the con-
frontation helps to make visible the extent to which ster-
eotypical Western economistic understandings of prop-
erty arise from centuries-long processes of subordination
of human lifeways to various forms of objectification and
regulation (e.g., to the market [Polanyi 1944] and the
historical constitution of law [Baker 1971]) and thus the
extent to which such understandings are susceptible to
deconstruction. There is nevertheless some irony in the
appeal to institutions built upon such “cultural con-
k i r s c h Lost Worlds F 187
structions” as a way of trying to gain recognition for
forms of relations which exist or once existed outside of
them.
Kirsch argues that we must re-embed the events of
loss and damage in the context of social relations in order
to reduce their scale and slow them sufficiently to carry
out analyses which will allow relativization. To that end
he examines subsistence production, place, and local
knowledge. But when we seek to argue the judiciability
and compensability of impacts, questions arise with re-
gard to their immediacy and longer-term temporality, as
well as their greater and lesser scale and specificity of
effect, that begin to suggest considerations of degree and
call into question notions of cultural formations as “in-
tegral” in the conjuncture. There can seemingly be few
impacts as immediate and radical as the bomb blasts
visited upon the unknowing Marshallese. One wonders
at the kind of argument made by Pollock for the “con-
tinuity of culture” in view of the scale and immediacy
of impacts for those directly affected, in circumstances
in which any capacity they may have had to act was
rendered irrelevant by being radically disabled. The for-
mulation of “culture” here as “embedded in the mind
and heart” and thus beyond the reach of immediate cir-
cumstantial change appears to have been appropriated to
an interested language and logic of the struggle in which
the assessment of impact was being worked through. Yet
we find that in relation to much longer-term processes
of articulation, for example, of Fourth World peoples
within dominant societies, Sahlins also argues for an es-
sential continuity of a cultural formation in the notion
of the “indigenization of modernity.” Similar kinds of
arguments have been made, for example, in some Aus-
tralian land claims cases, where successful outcomes
have depended upon demonstration of some kind or de-
gree of continuity in the case of apparent change. But all
those participating in such processes are aware of aspects
of social life that such formulations keep beyond the
immediate field of vision, however these are to be ana-
lysed. In contrast, the Marshall Islands Nuclear Claims
Tribunal has required people to demonstrate loss and
rupture, and culture here appears as the object of assault.
Although these arguments differ in some ways and are
deployed in different circumstances, what they share is
some kind of integral notion of “culture” as more than
the sum of concepts, relations, and practices—as an en-
tity that these together constitute. What is needed is
concepts that do not obscure what changes, what is lost
or damaged, but also enable us to theorize more ade-
quately than this cultural holism does the role of con-
tinuity and change in the ongoing social and imaginative
life of the people involved.
In other words, the realization of Kirsch’s project will
have more than one kind of practical implication and
outcome. It will show ways in which people’s lives have
been more and less drastically affected, but it will also
contribute to the deconstruction of cultures as holistic
entities in terms of which such assessments can be
made.
188 F c u r r e n t a n t h ro p o l o g y Volume 42, Number 2, April 2001
alcida rita ramos
Departamento de Antropologia, Universidade de
Brasilia, Campus Universitario Darcy Ribeiro, Asa
Norte, ICC Centro, Sobreloja, B1-347, 70.910-900
Brasilia, D.F., Brazil. (arramos@unb.br). 17 xi 00
Ironic as it may seem, it is comforting to see the thorny
issue of anthropologists as expert witnesses come to the
fore, and I congratulate the author for this rare occasion
and for his treatment at once unbiased and committed.
His careful analytical response to the events he describes
matches the severity of the suffering imposed upon na-
tive peoples by fits of absentmindedness on the part of
world powers. The careful unfolding of cases and con-
cepts is far more effective for our ethical sensibility than
the familiar denuciatory style. Particularly felicitous is
his focus on loss to highlight cultural property rights.
Equally fecund is his association of possession with be-
longing and property with knowledge as analytical tools
to counteract the Western ethnocentrism that is still
firmly moored despite the century-old doctrine of cul-
tural relativism.
But although analytical density and ethnographic
depth are necessary they are not always sufficient con-
ditions for furthering the cause of interethnic justice.
Ethnographic knowledge is often reduced to impenetra-
ble jargon, incomprehensible renditions of strange cus-
toms, or cursory generalities. The capacity to turn de-
tailed ethnographic knowledge into legal evidence is
seriously undermined when generic notions about the
locus of culture win the battle as in the Exxon Valdez
and, especially, the Marshallese case. In both situations,
the imbalance of power is so great that it allows the
accused’s defense to question the legitimacy of the plain-
tiffs’ grievances in the face of manifest crimes. The right
to cultural difference is called into question under the
guise of universalist justice. Such cases drive home the
disquieting realization of how often native peoples are
at the mercy of the rhetorical virtuosity of anthropolo-
gists and how often their own voices are covered over
by those of their surrogate experts.
Concepts such as culture are potential weapons in po-
litical and legal disputes, confirming once again the often
obscured fact that anthropology is not a neutral enter-
prise. To reinforce this sober lesson one might invoke
the delayed effect of Radcliffe-Brown’s seemingly inno-
cent concept of the local descent group as it was applied
to Australian Aborigines. Decades after Radcliffe-Brown
coined the term, Australian courts were using it as a
criterion for granting land to Aborigines. Claims that
could not be proved authentic by displaying local descent
groups would not be contemplated (Meyers 1986a:147).
Although the participation of anthropologists in legal
cases is not new (Rosen 1977, Meyers 1986b), serious
discussion of the professional, ethical, and political im-
plications of being an expert witness is surprisingly
scarce. In some American countries with permanent are-
nas of interethnic conflict the requirement of anthro-
pological witnesses in legal cases has been insti-
tutionalized. In Brazil, for instance, the Brazilian
Anthropological Association signed an agreement with
the Attorney General’s Office in the 1980s for the official
appointment of experienced professionals to specific
cases. Even so, ignoring this agreement, now and again
unqualified people are hired as experts to testify on be-
half of local political or economic interests to the det-
riment of indigenous rights. When such actions are not
denounced in time, irreparable damage can be done to
native peoples.
Central to Kirsch’s concerns seem to be the conse-
quences of anthropology in its applied and implicated
undertakings (Albert 1995). While the former points to
the unequal power between providers and receivers of
aid, the latter points to the inevitable ethical obligation
inherent in anthropological work. While in some na-
tional contexts commitment to indigenous causes is a
matter of individual choice, often sneered at by one’s
peers, in other settings the professional community ex-
horts anthropologists to assume their role as political
actors (Ramos 2000). But the disposition to act as expert
witness is one thing and being sufficiently fluent in legal
discourse to be effective is another (Dallari 1994, Oliveira
1994). An emotion-laden report often jeopardizes the de-
fense of indigenous rights because it diverges from the
forensic principle of impartiality (Gonçalves 1994). Emo-
tional detachment, ethical commitment, and analytical
depth are not easy to combine. If one of these ingredients
is missing, the outcomes may be similar for different
reasons: a judge may reject overtly pro-indigenous bias,
may interpret ethical indifference to mean desirable im-
partiality, or may be unimpressed with a shallow report.
In any case, the burden of the anthropologist’s inade-
quacy falls on the native people who are the object of
legal argumentation. Kirsch’s article clearly confirms
this predicament.
l a w r e n c e ro s e n
Department of Anthropology, Princeton University,
Princeton, N.J. 08544, U.S.A. 10 xi 00
When one sets out to construct a legal remedy, several
very careful distinctions need to be drawn. One must,
for example, specify the harm that is to be avoided or
compensated, the theoretical grounds on which the rem-
edy is to be constructed or analogized, and the rationale
upon which compensation is to be regarded as making
up, in whatever material or inchoate way, for the loss
incurred.
In the case of an indigenous group’s loss of habitat or
way of life, several theories for compensation suggest
themselves. The loss may be analogized to a property
interest, the idea of what constitutes “property” being
extended well beyond its prior range of examples. Before
the invention of the water mill Europeans did not con-
ceive of water as capable of being owned, and hence it
lacked compensable property interest. Nowadays, such
unusual items as frozen sperm, the air around oneself,
or one’s “zone of personal privacy” may be regarded as
forms of property. Kirsch rightly regards the loss of a

group’s territory and even its way of life as a kind of
property and even suggests that the knowledge they have
relating to their specific adaptation is a kind of property
interest. But while this analogy, like others in Western
legal history, is logically supportable, it may not consti-
tute the best ground for righting the asserted wrong.
First, it is unclear whether all aspects of a people’s
culture are equally valuable or by what criteria—to say
nothing of by what agency—that shall be determined.
One does not want to have to argue that, having lost the
opportunity to take the heads of their enemies, a group
should receive compensation for loss of knowledge and
culture. Similarly, situations of clear destruction, inten-
tional or not, by outsiders must be distinguished from
loss that arises from competitive pressures. Kirsch’s ex-
amples from the Marshall Islands or the loss of a limb
that could not otherwise be sold may lead to logical dif-
ficulties for the very situation one hopes to assuage; there
are cases of overt destruction or losses that could never
be converted to a sale, and therefore both their nature
and their valuation become extremely problematic.
Moreover, one cannot both assert that the loss is capable
of valuation and deny the applicability of market mech-
anisms without undercutting one’s ultimate goal of com-
pensating indigenous peoples for their losses. In short,
for all its intellectual and moral appeal, the idea of
knowledge as property is supportable only if the mech-
anisms for its assessment are addressed with adequate
conceptual rigor. And if one is to make a claim to com-
pensation for loss of knowledge, a far more rigorous ar-
gument will have to be made than the assertion, so res-
onant among many anthropologists but so lacking in real
content, that the situation of indigenous communities
is distinctive because of “the way these societies organ-
ize and reproduce themselves.”
A more useful argument might be constructed not in
terms of property law but in terms of the law of torts.
Tort law is about injury—harm—rather than loss of the
corporeal alone, and it has the advantage of long expe-
rience in acknowledging that the immaterial has genuine
value for both its uniqueness and its meaningfulness.
Thus, in both the common and the civil law concepts
have been developed for compensating emotional harm
or various forms of pain and suffering that are beyond
medical calculation. In each instance one must begin
with a theory of what is compensable and why, just as
one must build analogies for new kinds of property in-
terests. Here it may be well to think carefully about the
idea of cultural integrity as an interest which, if inten-
tionally harmed, may be compensable (see Rosen 1991).
Difficulties may still arise. Will the simple loss of a way
of life to a superior technology be regarded as harm?
Probably not, since the loss of a horseman’s way of life
to the culture of the automobile, for example, may be
no different from that which affects native groups in the
face of competition. And the fact that competition is
seldom worked out on a “level playing field” demon-
strates how hard it would be to apply such a concept.
But one may well be able to sustain a logical argument
in tort for loss of a way of life when it has been taken
k i r s c h Lost Worlds F 189
by force, just as one may then be able to include in the
compensable the knowledge that made that life mean-
ingful (see Coombe 1998). In no case will financial com-
pensation replace the loss, but the logic of the theory
may permit the extension of remedies beyond the mon-
etary that a simple reliance on property concepts alone
may fail to address. The result could be, at both the
theoretical and practical levels, a more realistic and cre-
ative appreciation of the needs and entitlements of those
deprived of that which made their world make sense.
madhavi sunder
University of California Davis School of Law, Davis,
Calif. 95616, U.S.A. (msunder@ucdavis.edu). 22 xi 00
New arguments for property rights in culture face an
uphill battle in today’s academy and in courts, both of
which are more receptive to postmodern theories of prop-
erty and culture. In the law schools, property professors
have deconstructed traditional property theories to re-
veal a fundamental paradox: while an important justi-
fication for property rights is that land and personal ob-
jects can be integral to our personalities, the paramount
right to transfer our property in market exchanges en-
courages us to alienate that property which is most es-
sential to us and harm our personhood in the process
(Radin 1982). This insight suggests that property rights
in culture may be counterproductive because they would
encourage the alienation, not the preservation, of
culture.
Intellectual property professors, too, would be wary of
proposals for creating new property rights in culture (e.g.,
intellectual property rights in local knowledge held by
indigenous peoples), bemoaning such proposals as yet
another step toward the enclosure of our public com-
mons and the propertization of knowledge and ideas his-
torically held in the public domain (Benkler 1999, Lem-
ley 1999, Lessig 1999). Postmodern intellectual property
scholars might further argue that justifying intellectual
property rights on theories of authorship—here, the
claim would be that cultural groups create their own
stories, knowledge, symbols, and songs and thus should
have exclusive rights to these cultural arti-
facts—romanticizes creativity as spawned by isolated
genius and fails to recognize that cultural creation is in
fact a dialectical process that involves interaction be-
tween cultures (Boyle 1996; cf. Coombe 1993).
Outside of law, as Kirsch points out, postmodern an-
thropologists and cultural studies theorists have unwit-
tingly erected their own barriers to cultural property
claims by complicating traditional definitions of culture
itself. Postmodern definitions of culture as something
that travels and transforms without necessarily being
lost or destroyed (Clifford 1997, 1988) pose serious prob-
lems for cultural property rights claims in court, which
rely heavily on the expert testimony of anthropologists.
Ironically, the problem is not that courts are unable to
understand postmodern theories of culture but rather
that in accepting anthropologists’ antiessentialist anal-
190 F c u r r e n t a n t h ro p o l o g y Volume 42, Number 2, April 2001
yses of culture courts conclude that cultural change is
natural and inevitable and, therefore, not appropriately
redressed through property rights or damages for cultural
loss. Claims that particular cultures are connected to
particular places are similarly challenged by postmodern
theories, such as diaspora theory, which view culture and
place as distinct.
In describing courts’ reluctance to recognize “culture
loss” because it is “attenuated and ethereal,” Kirsch’s
analysis is not unlike traditional critiques of the law’s
inadequacies in addressing intangible harms, such as the
harms of sexual harassment. But Kirsch goes farther,
highlighting how theories from the left, which I classify
here as “postmodern,” are also to blame for the failure
of courts to recognize the problem of culture loss.
Though unstated, embedded in Kirsch’s argument is a
critique of postmodernism itself: that postmodernism’s
deconstructing theories fail to recognize real harm and
real loss. In response to this problem, he proposes that
cultural property rights “can be used to address this crit-
ical blind spot of the culture concept” by making “visible
the losses experienced by indigenous communities,” spe-
cifically, the loss of “knowledge, ideas, and practices of
local value.” His thesis is compelling: that the property
concept can help us to understand culture in a more
complex way—namely, as both ethereal and real.
I am not so sure that the property concept alone will
do all the work of helping us to recognize the complex
nature of culture, but I do think that Kirsch’s critique of
postmodernists’ easy acceptance of cultural change,
without concern for the causes of change, is important.
Admittedly, in today’s world it is increasingly difficult
to distinguish what cultural changes are part and parcel
of modernity and what changes are spurred by a culture
falling prey to cultural imperialism (Sunder 2000). That
said, I think that Kirsch is right that we need not throw
out the baby with the bathwater. If what concerns cul-
tural property rights critics most is that property rights
would restrict the free flow of information, ideas, and
culture within and between cultures, this concern does
not rule out the possibility of designing law that would
narrowly address the problem of unnatural cultural
changes coerced by external forces (e.g., oil spills, nuclear
weapons tests, or language restrictions).
On the important issue of “why property?”—rather
than, say, a tort claim—to protect culture, a quick review
of the differences in legal remedies may be useful. A tort
claim for culture loss would require the person who
causes that loss to pay damages equal to the fair market
value of the loss (with the possibility of punitive dam-
ages). In contrast to a tort claim, a property right would
present the option of allocating damages based on the
subjective value of the property, which, as Kirsch points
out, could take into consideration an individual’s feel-
ings of belonging and possession. Yet a third option
would be to declare cultural property inalienable (Cal-
abresi and Melamed 1972), which has some initial appeal
because inalienability would prevent both the commo-
dification and the exploitation of a culture. However, an
inalienability rule would likely prove unworkable, as the
Exxon Valdez disaster illustrates. In the end, if we as-
sume that a subjective evaluation of the harm of culture
loss is higher than an objective, free-market evaluation
of that harm, then a property rule would seem to create
stronger incentives to avoid such harms. That said, any
remedy based on property approaches would have to ad-
dress its potential negative consequences, including
problems of commodification (Radin 1982) and conflict
within cultural groups over who owns the culture (Sun-
der 2000).
Revealing the relationship between property and post-
modernism helps us understand how, despite the best of
intentions, the postmodern lawyer, collaborating with
the postmodern anthropologist, might leave minority
cultures at the mercy of the forces of commerce and
colonialism.
edith turner
Department of Anthropology, University of Virginia,
Charlottesville, Va. 22903, U.S.A. (elt9w@virginia
.edu). 14 xi 00
The key to Kirsch’s essay is that the claim of the Mar-
shall Islanders in the matter of culture loss has been
overridden in the courts. This is the pivot on which turns
an immense philosophical issue. What are things, prop-
erty? Is the positivist assessment of what a thing is to
be considered absolute? Is tribal history or culture not a
thing? What does the world actually think about Amer-
ican property law? Has the U.S. legal system painted
itself into a corner, and has its service to the big cor-
porations separated it from credibility in the eyes of hu-
man beings as human beings? Kirsch pointed out that
the way to convince the public and the judges in such
cases is with particulars—the particulars of the natural-
cum-cultural need of the unfortunate exiled islanders
and their loss of opportunity to fulfil that need. The nat-
ural and cultural needs can in no wise be separated.
Here I want to insert some personal history that con-
firms what Kirsch describes more generally. In 1958 in
Manchester, England, where I was living with my family,
there occurred what is now termed the Sellafield disas-
ter, in which an experimental atomic pile about 11 miles
from the city leaked radioactivity. At the time, the Brit-
ish government announced with great assurance that the
danger was very slight. In 1959 I gave birth to a Down’s-
syndrome baby, Lucy, who died after five months. This
event, of course, affected my husband, Victor Turner, and
me deeply. I had no idea that the baby’s death was caused
by radioactivity and felt that there was something wrong
with me, and for years I undervalued myself.
In 1987 I spend a year in Point Hope, Alaska, studying
healing among the Iñupiat. Puzzled by the prevalence of
cancer there, I and others began to inquire into the cause,
both during that year and during subsequent short visits
that I made to the village. In June 1992, Dan O’Neill of
the University of Alaska at Fairbanks, conducting ar-
chival research on the Project Chariot activities of
1958–63, discovered documents about the illegal dump-

ing at the Chariot site, under the cover of the withdrawal
from the site, of 15,000 tons of radioactive soil deliber-
ately transported for the purpose of experimentation
from the Nevada test sites and secretly positioned near
Point Hope without the necessary legal containers. In
the middle of August the nine villages of the North Slope
learned what O’Neill had revealed. Rex Tuzroyluk told
me that when the news came out he went around to his
mother’s, and she just sat and wouldn’t talk to him. Her
daughter Tuzzy, a brilliant university student, had re-
cently died of cancer. Rex’s wife, Pikuq, who had not
been well, sounded in shock too. This was the general
mood. Jack Schaefer reported that on October 9, 100 an-
gry and fearful residents of Point Hope met at their com-
munity center and George Kingik made a speech in
which he compared their situation to the Holocaust.
When I visited Point Hope again the mood was black.
All the white authorities were denying that the dump
had anything to do with the people’s ill health. The peo-
ple had begun to doubt that the government would ac-
tually move the material. Jacob Lane, who had been an
important man, could no longer run a whaleboat and had
had to give up the captaincy. He was now unshaven;
many of the men had let their beards grow. There was
more trash lying about in the village. None of the vil-
lagers seemed able to lift up their heads. There had been
insult—the government had been found to have played
them false. These people embodied the oldest village in
America—did no one honor that? No one from outside
cared about it, and nuclear waste had been dumped on
them that would kill them.
During the investigations I discovered more about the
Sellafield disaster. It seemed that news had been released
in 1974 that there had been many thousands of Down’s-
syndrome and other abnormal births in Manchester dur-
ing the 1958–59 period. It dawned on me that the loss
of my baby had not been my fault but the result of the
atomic pile disaster. Since then I have discovered that
contaminated material is still flooding into the Irish Sea
and causing radioactive conditions in Drogheda, with the
result that the calcium in schoolchildren’s teeth shows
abnormal radioactive contamination. The British gov-
ernment has not moved to correct the problem at Sel-
lafield and argues that it is impossible to do so. Little is
heard about any compensation for these various forms
of loss.
Clearly, losses due to radioactivity are not truly to be
satisfied with money. I know this is so with regard to
the loss of my own child. What all such crimes against
humanity require is simply complete truth and recon-
ciliation—forgiveness on the part of the injured in return
for true caring for the powerless on the part of the au-
thorities and of all those who are powerful. This is the
principle of subsidiarity—in a way, the principle of
dharma, of the Japanese amae, also seen in the Native
American principle of generosity, in the idea of human
rights, and in the notion of the necessary moral unity of
humankind. The term may be defined as the law (beyond
and including the law of mystical participation) that the
life’s work of those in authority is to serve those under
k i r s c h Lost Worlds F 191
them. This may eventually be seen as the only healthy
relationship in economics, politics, industry, science,
family, and all human interactions.
toon van meijl
Center for Pacific and Asian Studies, University of
Nijmegen, P.O. Box 9104, 6500 HE Nijmegen, The
Netherlands. 24 xi 00
Since culture is no longer conceived of as a fixed entity
that can only be lost and not retained in a changed form,
it has been conceptualized as a dynamic practice em-
bracing constant change. The naturalization of change
in contemporary conceptions of culture, however, raises
the question how claims based on “culture loss” may be
acknowledged. Kirsch is to be commended for addressing
this increasingly important issue.
To resolve and redress the loss of culture, Kirsch ad-
vances the concept of cultural property rights, which has
been developed particularly in Fourth World societies.
He argues that the concept of loss refers not only to
material possessions but also to immaterial matters such
as culture and everything for which it stands. Salient in
indigenous discourses is, of course, the loss of land, but
apart from being a material object land is also considered
a spiritual asset and as such symbolizes a sense of be-
longing. For that reason, too, the concept of cultural
property should be defined not only with reference to
things but also with reference to relationships. The in-
trinsic link between things and relationships, between
possession and belonging, has been incorporated skill-
fully into Kirsch’s definition of cultural property, but to
my knowledge it is by no means recognized in the legal
regimes that are to provide for claims on culture loss.
This is clearly the weakness of Kirsch’s argument. He
cogently contends that our understanding of loss should
be broadened and, accordingly, that the concept of cul-
tural property rights should be extended, but he does not
seem to be taking into account that generally the law
does not change as fast as anthropology’s paradigms.
Kirsch substantiates the legal aspects of his argument
with reference to two interesting innovations in law.
First, he refers to a court ruling that might have opened
up the avenue for determining value beyond the scope
of the market, including cultural property rights. Sec-
ondly, he endorses the view developed by Radin, who
has disaggregated property by arguing that some cate-
gories of property are inextricably bound up with people
and therefore not convertible into other forms of prop-
erty that may be alienable by market forces. This astute
academic view, however, is diametrically opposed to the
restricted definition of property used by the courts ad-
dressing indigenous claims of “culture loss.” And when
a judge appears sympathetic to indigenous grievances, as
in the case mentioned by Kirsch, this does not imply
that he has resolved the ambiguities arising out of at-
tempts to define culture in legal terms.
In this context, I think it is telling that all the examples
elaborated by Kirsch are based on the loss of land,
192 F c u r r e n t a n t h ro p o l o g y Volume 42, Number 2, April 2001
whereas the concept of cultural property has been de-
veloped primarily in relation to claims on knowledge.
Knowledge claims have frequently been formulated in
cases in which specific forms of knowledge have alleg-
edly been misappropriated and applied to pecuniary ad-
vantage, for example, by pharmaceutical industries. Few
of these claims, however, have been successful for the
simple reason that cultural property rights or, in this
case, intellectual property rights are generally claimed
to be the collective property of communities, clans, or
tribes, whereas Western property regimes recognize only
property rights that are held by individuals.
It is equally significant that as part of the reformed
General Agreement on Tariffs and Trade most Western
governments have eagerly signed the Agreement on
Trade-Related Aspects of Intellectual Property Rights,
which facilitates the transfer of knowledge to global
companies, which, in turn, counteracts indigenous as-
pirations to protect their cultural knowledge. Of course,
the United Nations is working hard to seek protection
of indigenous knowledge systems in a Declaration on
the Rights of Indigenous Peoples, but it is unlikely that
this declaration will ever be ratified, at least in its current
form. One of the main reasons for this is that there is
no consensus on the concepts of cultural and intellectual
property. A colourful spectrum of local traditions and
legal procedures forms a decisive obstacle to negotiations
on the issue of cultural property rights. In fact, Kirsch
also shows the complexity of cultural property rights at
the level of international politics by comparing, for ex-
ample, countries in which people are asked to demon-
strate continuity when lodging a claim on “culture loss”
with countries in which they are invited to prove dis-
continuity. Unfortunately, however, this insight has not
prevented him from advancing the concept of cultural
property rights as a panacea for claims about “culture
loss.” Cultural property rights are indeed on the agenda
of indigenous politics, but the next step should be to
work out precisely what is understood by cultural and
intellectual property rights in different legal contexts and
traditions.
shinji yamashita
Department of Cultural Anthropology, University of
Tokyo, 3-8-1 Komaba, Meguro-ku, Tokyo 153-8902,
Japan (cshinji@mail.ecc.u-tokyo.ac.jp). 30 xi 00
In The Predicament of Culture James Clifford pointed
to two kinds of narratives of culture: narratives of ho-
mogenization and loss and narratives of emergence and
invention (1988:17). A narrative of homogenization be-
comes one of loss when homogenization means the loss
of indigenous tradition. There are frequent references in
the literature to the disappearance of “authentic” cul-
tural traditions because of the impact of modern Western
civilization, colonialism, or Coca-colanization. I have be-
come skeptical of this kind of narrative through my
study of the relationship between culture and tourism
in Bali (Yamashita 1999). In fact it is often incorrect be-
cause it presupposes cultural essentialism or primordi-
alism. As Hobsbawm and Ranger (1983) have shown,
“tradition,” as we know it, is mostly recent invention.
Culture is always something constructed in history; it
should be seen not as a static thing but as a dynamic,
evolving process.
Kirsch’s account revolves around the narrative of loss.
The “entropic” images of the loss may be all the stronger
because it was the result of the environmental disaster
caused by the U.S. nuclear weapons tested at Bikini
Atoll. The author’s approach to the theme is, however,
quite fruitful for the study of culture. He notes that his
intention is “to explain how claims about culture loss
might be understood.” I agree, then, with his view that
“studies of loss may enrich our understanding of property
and, conversely, that the concept of cultural property
rights may inform ongoing debates—legal, indigenous,
and anthropological—about the problem of culture loss.”
Kirsch focuses upon the courtroom debate over com-
pensation claims. Analyzing the debate, he argues that
the loss of property and, in particular, land should be
understood not only in the material sense but also in the
context of social relations. Therefore, the loss of land
means the loss of subsistence and of indigenous knowl-
edge and the technology related to it, such as pandanus
mat making or canoe building—in a word, the loss of a
culture rooted in the specific environment of a specific
territory. The narrative of loss, thus analyzed, paradox-
ically reveals the nature of the loss and the concept of
culture involved in the narrative.
The concept of culture at stake is what Jan Nederveen
Pieterse (1995) has called “territorial culture.” It con-
trasts with that of “translocal culture,” in which culture
is understood as a kind of “software” that transcends
territory. The two concepts have long existed side by
side: there are no “territorial” cultures that function only
with a single closed system or “translocal” cultures
without a place. In this age of global cultural flows (Ap-
padurai 1998), everybody on earth is experiencing the
problems of being unable to compete with local/indig-
enous knowledge alone. Returning to the culture rooted
solely in a particular territory may be impossible. The
problem ultimately is how people handle the process of
accommodation to a system wider than their own ter-
ritory. In this respect, the Marshall Islands do not seem
to be exceptional, even though the original loss was
caused by nuclear tests. Kirsch’s analysis of Marshallese
culture loss, then, may be valid only when he can specify
the loss of particular elements of territorial culture such
as the indigenous knowledge of pandanus mat making
or the technology of canoe building.
Kirsch writes wisely that his argument is analytic and
that his intention is to understand claims about culture
loss rather than to promote a particular compensatory
regime. His intention may be all right for the study of
culture, but if legal intervention in culture is inevitable
in the contemporary predicament of indigenousness it
may be necessary to feed the results of his analysis back
into the courtroom. It may be in the courtroom that the
real value of anthropological understanding will be

tested and assessed, and this exposure may enrich and
enlarge our discipline.
Reply
stuart kirsch
Ann Arbor, Mich., U.S.A. 12 xii 00
I thank the respondents for producing a rich and stim-
ulating set of commentaries that underscore the need for
more discussion of the challenges posed to indigenous
peoples by globalization and the problem of culture loss.
Nearly all of the comments and questions raised in these
responses address one or more of the following themes:
culture, loss, indigeneity, cultural property rights, and
politics.
Brown begins by astutely observing that culture has
been transformed into a social fact which can no longer
be withdrawn from the public domain. Escobar points
out that we need to investigate how culture is used to
fashion truth claims, especially outside of the discipline,
and make explicit the consequences of conceptualizing
culture in particular ways. Merlan points to the differ-
ence in the way culture is used in Australian land claims,
to emphasize continuity while obscuring losses, and in
Marshallese claims for compensation, where it appears
as the object of loss, and suggests the need for alternative
conceptions that can transcend this figure-ground
reversal.
Dominguez suggests that the notion of culture loss
signals a particular kind of sadness. These are losses
which can never be made whole, losses of relations be-
tween generations and connections to place that were
conceived of as fundamental and enduring, and they
could not have been imagined prior to colonialism. Local
vocabularies are ultimately inadequate to account for
these experiences, and therefore they have found ex-
pression in terms of culture. Giles-Vernick points to the
importance of distinguishing between the sense of loss
and other forms of nostalgia, which can be profoundly
conservative. Yamashita suggests that some losses (and
some aspects of culture) may be associated with terri-
toriality and others with translocality, a relationship that
I tried to invoke. However, he also historicizes these
concepts, suggesting that globalization requires people
to address both a local and a translocal notion of culture
(or understanding of themselves), although the latter no-
tion may well have been present, albeit less self-con-
sciously, in the past.
Dominguez observes that whether a particular loss is
judicable or compensable may be subsidiary to the act
of recognition—calling attention to something which
had been invisible and identifying the wrongs that have
been committed. Drawing on personal experiences as
well as those of the Iñupiat, Turner emphasizes the im-
portance of truth and reconciliation in response to losses
which cannot be remedied with money. In her view, what
is critical is that persons with power and authority accept
k i r s c h Lost Worlds F 193
their responsibility to “serve those under them.” Di-
rectly challenging Pollock’s claim about the conserva-
tion of seafaring knowledge in the Marshall Islands, Fin-
ney provides compelling examples of both loss and
potential revitalization.
The clear limits and statutes of limitation on the rec-
ognition of culture loss requested by Brown and the op-
erationalization of concepts that Yamashita recommends
are secondary, in my view, to the identification of the
general principles involved. Practical solutions to these
problems will have to be negotiated on a case-by-case
basis. Dominguez asks how anthropologists would re-
spond to majority groups’ claiming the same cultural
property rights as those proposed here on behalf of mi-
nority groups, but assumptions of universality and same-
ness are not the only basis for equality (see Kymlicka
1995, Anaya 1996).
Several respondents (Brown, Giles-Vernick, Biery-
Hamilton) question the generalizability of the concept
of indigeneity, which has a particularly thorny history
in Africa (Giles-Vernick). Biery-Hamilton draws on her
research in the Amazon, where peasants have been de-
nied access to land because the Brazilian government
refuses to recognize common-property regimes except for
indigenous peoples and therefore have suffered losses
comparable to those which I have described. I agree with
Giles-Vernick that it is important to historicize the pro-
cess through which people “produce, debate, and give
meaning to” the concept of indigeneity. Rather than a
natural social category, indigeneity should be seen as a
political discourse about rights—not unlike, for example,
the concept of the nation—which connects people to a
global politics beyond the state (see Li 2000). It is, as
Escobar notes, one of the ways in which “people’s sense
of belonging and attachment to place continue to be im-
portant sources of cultural production and mobilized to
various ends.” Along with culture and the nation, how-
ever, indigeneity has become a social and political fact
and in many cases a legal status as well. What is im-
portant is to indicate the limits of its applicability, as
these commentators have usefully done.
Rosen and Sunder, the two legal readers of the argu-
ment presented here, take opposite positions on whether
claims about culture loss are best argued in terms of
property claims or in terms of tort law. Sunder agrees
that property claims may provide significant opportu-
nities for addressing the subjective evaluation of loss,
including culture. Rosen argues that tort law is the more
promising avenue for redress, suggesting that harm to
“cultural integrity” may be compensable. His invocation
of the holistic notion of integrity, however, seems likely
to cause more problems than it resolves (see Merlan
above). Given broad differences in forum and historical
circumstances, however, and in whether statutory au-
thorities are primarily concerned with the valuation of
loss or the demonstration of continuity, having recourse
to more than one legal remedy seems desirable rather
than problematic.
Brush, van Meijl, and Rosen express skepticism re-
garding the willingness of the courts to recognize cul-
194 F c u r r e n t a n t h ro p o l o g y Volume 42, Number 2, April 2001
tural property rights. Brush argues that “unilateral dec-
larations of novel property rights” are insufficient. Van
Meijl notes that most debates about cultural property
refer to the appropriation of cultural knowledge, whereas
the claims addressed in my essay all refer to land. Brush
also argues that the “extremity of double victimization
under colonization and nuclear testing may obscure the
issue of wider social benefits and costs that are at play
in recognizing culture as property and culture loss as
deserving of compensation.” In a related context, how-
ever, William Pietz (1997:108) has described how new
monetary values may be established in response to trau-
matic losses, a process which is suggestive for the do-
main of cultural property rights:
It may be that the historical limits of capitalist rela-
tions appear in those traumatic events that fall out-
side the economic realm of commercial exchange
and contractual agreement, but whose material im-
pact on individual human lives, in the cases of acci-
dental injury, and on whole peoples, in the form of
war, nevertheless valorizes new debt relations that
modern social orders must somehow realize in the
form of monetary value.
In cases of culture loss like those described here, it may
be possible to see more clearly the need for a remedy
that involves the concept of cultural property rights.
Also at issue is whether legal precedents of the variety
discussed here are necessarily established from the top
down through agreements negotiated by multilateral or-
ganizations, as Brush and van Meijl suggest. Legal prec-
edents might also be created through small-scale inno-
vations at the level of case law, as plaintiffs’ lawyers and
judges respond to novel problems associated with cul-
tural difference and claims regarding the grievous harm
suffered by indigenous peoples. Sunder apparently en-
dorses this view, suggesting that even though the notion
of cultural property rights may be rejected for some do-
mains, it might still be used to fashion a constructive
remedy to the problems of culture loss.
I support van Meijl’s call for comparative research on
cultural and intellectual property rights, although it
seems necessary to address the general while working
out the local. Cleveland observes that all declarations of
rights are culturally (and historically) constructed. He
argues that we must also consider absolute limits on
rights, referring in particular to unsustainable demands
on the environment, but this insight is equally valid with
respect to contexts in which there are competing or over-
lapping property claims. He also suggests that solutions
to these problems are likely to be hybrid in nature, com-
bining, for example, indigenous and scientific knowledge
in the practice of conservation or environmental
reclamation.
Dirlik, Finney, and Ramos raise questions about the
role of anthropologists as expert witnesses and the trans-
formation of ethnographic knowledge into legal evi-
dence. Ramos identifies “emotional detachment, ethical
commitment, and analytical depth” as the three require-
ments of successful testimony, and she is rightly con-
cerned about the indigenous people who bear the burden
when anthropologists fail to meet these requirements.
Furthermore, she questions the legitimacy of legal pro-
ceedings in which the imbalance of power “allows the
accused’s defense to question the legitimacy of the plain-
tiff’s grievances in the face of manifest crimes.” Com-
parable reasoning prompts Karlsson to recommend the
familiar and reasonable strategies of documentation and
protest, including continued insistence on the inalien-
ability of land and ethnographic description of loss.
Similarly, Dirlik argues that judicial systems like the
tribunal impose structures of meaning on the partici-
pants, with the result that by following its rules and
procedures they necessarily submit to its power. Fur-
thermore, he maintains that any attempt to posit alter-
natives within this hegemonic framework can only re-
produce the existing relations of domination. That the
courts operate “as if only the natives’ memories were
subject to constructedness and not the anthropologists’
scholarship” was precisely my point. As Merlan points
out, it is ironic that claims about loss should be made
with reference to Euro-American concepts of property
implicated in those losses, but that is still where the
power lies. Carucci’s aim was to instruct the courts not
to assume that their views, particularly the assumption
of the inherent alienability of all things, are universal.
Furthermore, the concept of cultural property rights was
proposed to make the referents of local discourse about
culture loss visible to the courts. Straightening out the
intercultural debates on these issues, as Escobar sug-
gests, is not only a worthy academic project but also a
politically compelling one.
Escobar observes that the “boundaries between ‘aca-
demic’ and ‘applied’ and between ‘knowledge producers’
(experts/anthropologists) and ‘users’ (local people, social
movements) are no longer neatly construed.” I would
like to conclude by illustrating this claim with a final
image drawn from my experiences working with the peo-
ple living downstream from the Ok Tedi mine. It is a
substantially different picture from that of the court-
room, although it is part of the same sphere of indigenous
political action. When Rex Dagi, a leader in the political
and legal struggle against the mine, attended the 1992
Earth Summit in Rio de Janeiro, he was invited to speak
to a group of journalists assembled aboard the Green-
peace Rainbow Warrior II in the Rio harbor. When I later
asked him about the press conference, he said that he
had read from a paper that I had written on the basis of
interviews with him and other people affected by the
mine. Dirlik might say that once again anthropology has
been used to silence the voice of the “natives,” but such
a claim would radically underestimate Dagi, a charis-
matic and articulate orator, and his strategic decision to
(re)appropriate my text. The challenges of intercultural
communication are significant, and anthropologists oc-
casionally have resources to offer. This example also runs
counter to Dirlik’s claim that plus ça change, plus c’est
la même chose: 500 years after Columbus read a proc-

lamation in Spanish to the “natives” declaring sover-
eignty over the New World, Dagi arrived in Rio from
Papua New Guinea to protest corporate-sponsored en-
vironmental degradation. While power and hegemony
have by no means disappeared from the world in the
intervening five centuries, the varieties of resistance and
the possibilities for political engagement have certainly
multiplied.
Escobar argues that our sense of politics may have be-
come diluted by the very sophistication of our analyses.
Anthropologists seem most comfortable searching for
political solutions in notional spaces that are free of the
domination of capital, binary dualisms, neocolonialism,
and other forms of hegemony rather than through en-
gagement. What is at stake in the cases considered
here—in addition to the interests of the people them-
selves—is not only getting it right anthropologically or
even fashioning an academy that is continually chal-
lenged by rather than isolated from the world but ulti-
mately a politics that acknowledges a wider range of
analytic possibilities.1
1. In a memorandum of decision and order on April 13, 2000, the
Nuclear Claims Tribunal determined that claimants from Ene-
wetak Atoll are entitled to US$ 324,949,311 in compensation as a
result of the impact of U.S. nuclear weapons testing and their re-
location. This figure includes $199,154,811 for past and future loss
of use, $91,710,000 to restore Enewetak to a safe and productive
state, and $34,084,500 for hardships suffered as a result of relocation
and loss of access to their land. In explaining its decision, the tri-
bunal noted that the Marshallese Constitution stipulates that just
compensation must be based in part on the “unique place of land
rights in the life and law of the Republic.” It chose restoration rather
than compensation for the difference in the value of their land
before and after it was damaged, justifying this decision by making
reference to claims made by Carucci that land in the Marshalls is
viewed as “a part of one’s person and one’s entire identity.” The
tribunal also acknowledged that land in the Marshall Islands is
inalienable and therefore no market value for the sale of land can
properly exist, arguing that “a market approach would not provide
a true measure of loss because it would not account for the deeply
personal reasons of the Enewetak people for restoring their land.”
It admitted the category of hardship damages despite the objections
of the Defender of the Fund because they were “so closely related
to the underlying subject matter of land damages.” In conclusion,
the tribunal noted that “the claimants have suffered damage beyond
that which money can compensate. The destruction and disruption
of their community and the attendant life style and values cannot
be compensated with an award of dollars. The passage of time and
changes in culture preclude a return to the way things were half a
century ago. While that which was lost may be priceless, it does
not mean that it was without value; nor does it justify an award
which is not firmly based in fairness and reasonableness” (Nuclear
Claims Tribunal 2000). The Republic of the Marshall Islands has
petitioned the U.S. Congress to provide additional funding for the
Nuclear Claims Tribunal so that it can make this award. Among
the many factors that will influence Congress’s response is its de-
sire to maintain the base on Kwajalein Atoll, where the U.S. mil-
itary tests the accuracy of its antiballistic-missile system.
k i r s c h Lost Worlds F 195
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